English law does not match today’s lived reality. In 2021, 22 per cent of couples who lived together were cohabiting. The total number of opposite sex cohabiting couples has shot up from around 1.5mn in 1996 to around 3.6mn in 2021, an increase of 144 per cent.
In 2021, the number of babies born to unmarried mothers and those not in a civil partnership in England and Wales overtook those born to married mothers for the first time since records began in 1845.
There were 624,828 live births registered in England and Wales in 2021 – this includes 320,713 live births to women unmarried when they gave birth, 51.3 per cent of the total.
The leading family law organisation Resolution, with 6,000 lawyer members, points out: “Under current law, it is possible to live with someone for decades and to have children together, but then simply walk away with the economically stronger party taking no financial responsibility for a former partner when the relationship breaks down.
"It can create hardship, particularly in cases where a mother has given up or reduced her working hours to raise a family. The financial and practical arrangements for cohabiting couples are no less enmeshed than those of the couples who are married or civil partnered.
"In all scenarios roles and responsibilities are shared, including financial, particularly where there are children."
Yet, after cohabitees have a relationship breakdown there is no overarching legal framework to assist with a fair uncoupling to both parties.
Where a couple has a UK Islamic marriage without a civil ceremony upon separation, they may be treated in English law as unmarried and the financially vulnerable again lose out.
In 2007 the Law Commission recommended changes to the law on cohabiting partners (and drafted legislation to improve their rights on death in 2011), yet little has changed.
As Resolution so rightly says, there should be “a legal framework of rights and responsibilities when couples (not married or civil partnered) who live together split up, to provide some legal protection and secure fair outcomes at the time of a couple’s separation.” This would sweeten the sorrows of parting.
Legal education is fruitless
It would be simpler if unmarried partners just tied the knot – perhaps an extensive advertising campaign might work, pointing out that there is for instance no such thing as a 'common law wife' with any legal rights.
Since lawyers, financial advisers and accountants have all been singing on the same hymn sheet and still one in five committed couples are unmarried, then the law must change to fit the facts. We need reform within the next parliament.
I like the Resolution proposals that cohabitants meeting eligibility criteria indicating a committed relationship could apply for financial remedies orders if they separate. This right would be automatic unless the couple chooses to opt out.
