An overview of the changes to legislation impacting unmarried cohabitants’ rights and where change is still needed.
What are the key changes in legislation for cohabiting couples’ rights in the last few years?
Cohabitants have similar rights to spouses and civil partners to obtain protection from the courts against domestic abuse by their partners, by way of non-molestation orders and occupation orders in respect of the family home, under Part IV of the Family Law Act 1996.
The offence of coercive control, introduced under section 76 of the Serious Crime Act 2015, applies to people in ‘intimate personal relationships’ or ‘the same family’, including cohabitants and ex-cohabitants.
The legal position of non-EU national unmarried partners wanting to enter or remain in the UK with their British partner is similar to that of married partners. In order for an unmarried partner to obtain the right to enter or remain in the UK, the couple need to have been living together for at least two years.
Social housing—succession rights to secure tenancies
The Localism Act 2011 altered the succession rights of people living with secure council tenants in England—in respect of council tenancies created after April 2012—by limiting the right to succeed to the tenancy to the spouse or partner of the deceased tenant. This brought succession rights in relation to council tenancies in line with succession rights in relation to housing association assured tenancies.
The Housing and Planning Act 2016 (HPA 2016)—which has not yet been brought into force— includes provisions further restricting the right to succeed to a secure tenancy to the spouses, civil partners and cohabitants of a secure council tenant, irrespective of when the tenancy was created. These changes are linked to the removal of the ability of local authorities to provide lifetime tenancies to new tenants.
The Secure Tenancies (Victims of Domestic Abuse) Act 2018—which had cross-party support and received Royal Assent in May 2018—ensures that victims of domestic violence who are or have been in the same family or household, or in an intimate personal relationship with their abuser, will still retain the automatic right to succeed to a ‘lifetime’ secure council tenancy, when the HPA 2016, requiring local authorities in England to offer only fixed term tenancies, comes into force. The majority of existing council tenants have secure tenancies and this important exemption to HPA 2016 for victims of domestic violence, whether married or unmarried, will enable cohabitants to leave abusive relationships without having the worry that doing so would result in reduced security of tenure.
Under reforms introduced in the mid-2000s, public service pension schemes now provide survivor pensions for unmarried, as well as married partners, bringing them in line with private pension schemes. Subsequent reforms to the main public service schemes also provide for survivor pensions to be paid for the lifetime of the surviving partner, rather than coming to an end on their remarriage or cohabitation.
What are the main problem areas which still have big differences in the rights between married and unmarried couples? What steps need/are to be taken to change this?
The main areas of difference between the legal position of married and unmarried cohabiting couples are the financial consequences when the relationship ends, either because their relationship breaks down or one of the partners dies.
The difference in the legal position on relationship breakdown between married and cohabiting couples
As is well known, marriage and civil partnership impose legal rights and responsibilities. If a marriage or civil partnership breaks down the court has a very broad discretion and wide-ranging powers to redistribute property and other capital assets—as well as the couple’s incomes and pensions—to achieve fairness between the couple.
Marriage is seen as a partnership of equals, regardless of how a couple choose to organise their respective roles during the marriage. If a marriage breaks down, the assets acquired during the marriage are usually divided equally between the couple, so long as this outcome is sufficient to meet their respective financial needs, and those of any children of the family. In the smaller money cases, especially where there are children, the outcome of the case is usually dictated by the necessity of meeting the financial needs of the couple and their children. This may involve an unequal division of the assets.
In contrast, due to the lack of legal status for unmarried cohabitants, if a cohabiting relationship breaks down the court has no discretion and the economically weaker cohabitant has no right to receive a share of the assets held by the economically stronger cohabitant (other than those in joint names). This includes their family home, or receiving any financial support/maintenance, however long the couple have lived together, and whether or not they have children together.
A former cohabitant who wishes to seek a share of the family home held in the sole name of the other partner will only be able to do so if they are able to establish a beneficial interest in the property, usually by way of a common intention constructive trust, or proprietary estoppel. Similarly, they will have no right to any financial support/maintenance from their former partner for themselves. If the couple have children together they will have to apply to the Child Maintenance Service for child maintenance and/or, in a bigger money case, pursue a claim through the children under Schedule 1 to the Children Act 1989, to obtain limited capital provision, a ‘carer’s allowance’ and housing in a property which they and the children will have exclusive use of until the children are grown up, when it will revert back to the economically stronger partner.
The difference in the legal position between married and cohabiting couples on the death of one of the partners
When a spouse or civil partner dies without leaving a will, the surviving spouse or civil partner has an automatic right to inherit. They may also challenge the provision made for them under their deceased spouse’s will as being inadequate.
In contrast, cohabitants have no automatic right to inherit in the event of their partner’s intestacy, however long they have lived together and whether or not they have any children. Cohabitants who have been living with their partner for at least two years immediately before the partner’s death can make a claim against the estate, under the Inheritance (Provision for Family and Dependants Act) 1975. The financial provision they can obtain will depend on the status of the applicant’s relationship with their deceased partner. Whereas the provision out of the estate for a spouse or civil partner of the deceased will be based on what is reasonable for the surviving spouse/civil partner to receive, cohabitants receive a different, lower standard of financial provision, based on their maintenance needs.
The steps needed to be taken to change the position
We need legislation to provide financial remedies for cohabitants on relationship breakdown, as well as introducing an automatic right to inherit (without having to make a claim against the late partner’s estate) if a partner dies intestate. The court needs to have statutory powers to adjust cohabitants’ property and incomes, in order to mitigate the economic hardship suffered by the economically weaker partner in the event of the breakdown of cohabitation.
In July 2007, the Law Commission published a report which recommended the introduction of a new statutory scheme of financial provision for cohabitants following the breakdown of their relationship. The Law Commission did not consider that unmarried cohabitants should be given the same rights as married couples. Instead they recommended a new scheme of financial provision based on the contributions made by the parties to the relationship—rather than their financial needs—in contrast to financial provision awarded on the breakdown of a marriage/civil partnership. A cohabitant applicant would have to demonstrate that the respondent retained a benefit or that the applicant had suffered a continuing economic disadvantage, as a result of their respective contributions to the relationship. The court would have discretion to award such financial provision as might be appropriate to address the hardship and economic unfairness that can arise when cohabitation breaks down, giving first consideration to the welfare of any dependent children. The scheme would not apply to all cohabitants but only those who had lived together for a certain period of time (between two to five years), or had children together, and cohabitants would be able to choose to opt out of the scheme, by entering into a formal cohabitation/living together agreement to that effect. Legislation along these lines has already been introduced in Scotland (see section 28 of the Family Law (Scotland) Act 2006).
In December 2011, the Law Commission published a further report recommending that cohabitants who had lived together for a certain length of time should have the automatic right to inherit if their partner died intestate without having to make a claim against the estate. Cohabitants in Scotland can make such claims when their partner dies.
The family lawyer organisation, Resolution, has conducted a campaign to raise public awareness of the lack of rights for cohabitants. It has also made proposals for statutory reform, similar to those of the Law Commission—‘that cohabitees meeting eligibility criteria indicating a committed relationship’ should have the right to apply for financial provision in the event of the breakdown of the relationship. As with the Law Commission’s proposals, Resolution recommend that couples should have the right to opt out of the statutory scheme, if they so choose.
Various Private Members’ Bills, seeking to establish legal rights for cohabitants on relationship breakdown and/or death have been introduced on various occasions over the years in both houses.
Which key cases have helped advance the rights of unmarried couples in recent years?
Establishing beneficial interests in property
There is an important line of cases (essentially judge-made law) establishing precedent to enable some former cohabitants to establish beneficial interests in family homes, by way of a common intention constructive trust, in situations where the beneficial ownership is different to the legal ownership of the family home. See Oxley v. Hiscock  EWCA Civ 546,  All ER (D) 48 (May), and Stack v Dowden  UKHL 17,  2 All ER 929, and Jones v Kernott  UKSC 53,  All ER (D) 64 (Nov) etc.
The situation regarding a couple’s true intentions concerning property purchased in their joint names has become more clear-cut since October 2012. Since then, in addition to the TR1 form—stating whether they intend to own the property on trust for themselves beneficially as joint tenants, or as tenants in common in equal/unequal shares—joint property owners are also required to complete a JO form, specifying the intended ownership of the property in more detail. Consequently, so long as the TR1 and jointly owned property trust forms have been properly completed this will usually be conclusive evidence of an unmarried couple’s intentions regarding the ownership of their family home.
Pension rights—survivors benefits on death
The Supreme Court decision in February 2017 (In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland),  UKSC 8,  All ER (D) 74 (Feb))—following the application by Denise Brewster for judicial review of the terms of a local government pension scheme in Northern Ireland—has led to the previous requirement for a formal nomination to enable unmarried partners to qualify for survivor benefits being removed from local government pension schemes.
In Brewster, Brewster and her partner William McMullan had lived together for about ten years and had just become engaged, when he died suddenly and unexpectedly, in December 2009. Although Brewster believed that McMullan had formally nominated her to receive a survivor’s pension in the event of his death, under the local government pension scheme that he had belonged to for about 15 years, no nomination form was discovered after his death. Consequently, the scheme administrators refuse to pay her a survivor’s pension. The Supreme Court agreed with the original High Court decision that requiring the additional hurdle of formal nomination in the case of a surviving cohabiting partner, in contrast to a surviving spouse or civil partner, in order to qualify for a survivor’s pension was incompatible with Article 14 of the European Convention on Human Rights (prohibiting discrimination), read together with Article 1 (protecting peaceful enjoyment of possessions) and made a declaration that Brewster was entitled to a survivor’s pension under the scheme.
Social security benefits
When making a claim for means-tested social security benefits, including tax credits and universal credit, the income and capital resources of cohabitants are added together when determining their financial eligibility, as for married couples or civil partners.
However, the rules about receipt of contributory social security benefits—based on national insurance contributions—treat unmarried couples differently to spouses or civil partners, and there has been continued resistance by successive governments to extend contributory benefits (including bereavement benefits) to unmarried partners.
In another Northern Ireland case, Siobhan McLaughlin won an important decision in August 2018 (In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland),  UKSC 48,  All ER (D) 144 (Aug)), when the Supreme Court made a declaration that denying her (as an unmarried parent) the right to receive widowed parent’s allowance—to which she would otherwise have been entitled due to the requisite national insurance contributions having been paid by her partner— because she and her deceased partner had not been married, was discriminatory and a breach of her and/or her children’s human rights. McLaughlin and her partner John Adams had been living together as a couple for about 23 years when he died in January 2014, leaving her with four children, then aged 11, 13, 17 and 19.
Although the Supreme Court recognised that it was a legitimate aim of the social security system to ‘privilege’ the status of marriage—so as to encourage couples to formalise their relationships by getting married (or entering civil partnerships)—they held that denying widowed parents’ benefits simply because of a couple’s unmarried status was not a proportionate means of achieving that aim.
In 2016 the House of Commons Work and Pensions Select Committee had recommended that bereavement benefits should be extended to cohabiting couples. The Committee pointed out that the cost of so doing could be limited to about £21.6m if the extension of such benefits was limited to those unmarried partners who (like McLaughlin) were left with dependent children.
The government is now considering the implications of the Supreme Court ruling, but it remains unclear if and when the law regarding the payment of bereavement benefits will be changed to include unmarried couples.
Is there anything else you would like to add?
We know from data published annually by the Office for National Statistics since 1996 about the composition of families in the UK that there has been a steady increase in the number of opposite-sex (as well as same-sex) unmarried cohabiting couples since that date.
The numbers of opposite-sex cohabiting couples increased from about 1.5 million in 1996 to about 3.2 million in 2017. The numbers with dependent children more than doubled during the same period. Over the same period, the number of married couples with dependent children fell, making opposite-sex cohabiting couples with children the fastest growing family type in the UK.
During the same period, the number of same-sex cohabiting couples also increased, from about 16,000 to 101,000. During this period, civil partnerships and same-sex marriage became available to same-sex couples—in December 2005 and March 2014 respectively—so that the figures recorded for same-sex cohabiting couples understate the increase in the number of same-sex families between 1996 and 2017.
In view of the continuing trend for an increasing number of couples to cohabit and to have children without getting married (although some of them do subsequently get married or enter into civil partnerships) it seems extraordinary that in the 21st-century cohabitants in this country still have so few legal rights and that successive governments have ignored calls for reform of the law from various well-informed organisations, including the Law Commission and Resolution.
My concern is that following the Prime Minister’s announcement in October 2018 of the present government’s intention to extend civil partnerships to opposite-sex couples (following the judgement of the Supreme Court in June 2018 in R (on the application of Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary),  UKSC 32,  All ER (D) 145 (Jun)) the government may feel they have done enough, by making civil partnerships (as well as marriage) available to all couples, so that reforming the law for those who do not formalise their couple relationships is seen as less important.
However, this ignores the still widely held belief in the mythical ‘common law wife’ and ignorance about the legal position of cohabitants. It also ignores the potential for economically stronger cohabiting partners (nearly always men), who are aware of their legal position, to exploit their powerful positions and avoid financial claims being brought by their former cohabiting partners (nearly always women), resulting in financial hardship to their former partners and the children of the relationship.
In summary, as the Law Commission put it in their report, ‘Cohabitation: the financial consequences of relationship breakdown’, as long ago as July 2007, the current law concerning cohabitants is inadequate and does not meet the needs of such families:
‘It is complex, uncertain, expensive to rely on and, as it was not designed for family circumstances, often gives rise to outcomes that are unjust[.]’
We need new legislation.
Interviewed by Samantha Gilbert.
This article was first published on Lexis®PSL Family on 16 November 2018.
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