A Private Members’ Bill aims to give legal rights to couples who live together but who are not married
When law is out of step with society, it deserves reform. On Friday a Private Members’ Bill comes before the House of Lords to create a framework of rights and responsibilities for couples in England and Wales who live together but who are not married.
At present unmarried couples who split up have few legal rights; women and their children can fall into poverty if a relationship breaks down.
The Cohabitation Bill seeks to redress that. Promoted by Lord Lester of Herne Hill, the leading equality and human rights reformer and QC, it would give legal rights to couples in a committed relationship who have lived together for at least two years or have a child together.
Unless they chose to “opt out”, they automatically would be able to apply for certain financial orders if they separated.
The Bill is part of a campaign called Living Together and is organised by Resolution, the association of 5,000 family lawyers in England and Wales, with the Odysseus Trust, founded by Lord Lester.
He said: “The current law creates an unacceptable situation in a society that prides itself on fairness. The law should be clear and reasonably predictable. Yet when cohabitants seek legal redress on separation, they are faced with complex legislation, uncertain outcomes and potentially high costs that can exceed those of a fully-contested divorce.”
In one case that went through the courts, Mr and Mrs Burns (so-called) lived together for 19 years and had two children. They lived as a family and pooled their resources, but when the relationship ended, Mrs Burns was entitled to nothing. She was what people called a “common law wife” but, contrary to popular belief, was not entitled to any share of the family home.
In reality there is no such thing as a “common law marriage”. But the social security system, lawyers say, fosters the myth and gives people a false sense of security by referring to them as “living together as husband and wife”.
The proposed Bill, drawing on widely supported recommendations of the Government’s law reform watchdog, the Law Commission, will face criticisms that it may undermine marriage and the place of civil partnership.
Lord Lester and the Bill’s backers insist that this is not the case. People choose to marry or enter a civil partnership for a variety of emotional, religious or other reasons and the Bill will not affect that, they say.
Nor have laws that protect cohabitants in other countries had a negative impact on marriage: in Australia, where such rights were introduced state-by-state between 1984 and 2002, research has shown no link between the new rights and any fall in the propensity of couples to marry.
Nor does the Bill, in any case, equate the rights of unmarried couples with those who are married or in a civil relationship. The former would not benefit from the same tax or pensions advantages and there would be differences in how a court would decide on the split in finances on a break-up: for instance, maintenance generally would be limited to three years on the basis that the couple should be financially self-supporting as soon as possible. Claims also would be limited to reasonable needs, with no presumption of equal sharing of assets. Practical incentives to marry therefore would remain.
But the law needs to catch up so that cohabitants are not left in a vulnerable position. Some choose not to marry; others cannot, because of an unwilling partner. Their numbers are growing: the proportion of cohabiting couples rose from 9 to 14 per cent between 1999 and 2006. Government actuaries calculate that by 2031 there will be 3.8 million such couples, a 90 per cent rise over 25 years. Meanwhile, Scotland has already legislated to give some cohabitants certain rights.
There is strong public support for reform. According to the British Social Attitudes Report published in January last year, nearly nine in ten people think that a cohabiting partner should have a right to financial provision on separation after a long-term relationship or where children are involved.
The Bill also provides for other rights, such as allowing a surviving cohabitant to register the death of the other; or to apply for bereavement damages.
It is more than 30 years since Lord Lester was instrumental in devising what became the first discrimination laws in Britain. It is now time for a similar landmark step to reflect the needs of more than two million couples and protect those most vulnerable – not least the 25 per cent of children born out of wedlock.