Better education and advice is the way forward for cohabitee rights.

In the summer of 2018, Rebecca Steinfield and Charles Keidan took their claim for the right to enter into a civil partnership to be extended to heterosexual couples all the way to the Supreme Court – and won. The Government accordingly announced in October 2018, that the law would be changed. Steinfield and Keidan stated that they wanted to raise their daughters not as a traditional married couple but as “equal partners” and a civil partnership would be a “modern, symmetrical institution”.

The decision has been hailed as a step forward for cohabiting couples (i.e. couples who live together but are not married) who are the fastest growing type of family in the UK, having overtaken married couples many years ago. But will it really encourage such couples to enter into such a partnership and will it be in their interests to do so?

In the eyes of the law and in the event of a separation of the couple, there is no difference between civil partners and spouses. Both are treated the same and both have the same rights to apply to Court for financial orders.

Civil partnership is therefore not a “half way house” as it is possibly being portrayed in the press.

If couples start to live together on a casual basis or because they want time for their relationship to develop before they commit to any kind of a legal relationship, the Government’s announcement will therefore not represent any kind of an incentive.

There is a campaign for cohabitants to have the right to make financial claims on separation. The cases of injustice usually quoted in the press, concern women who have lived with their boyfriends in the boyfriend’s homes for many years, raised their children but yet do not acquire any rights to housing or maintenance, irrespective of the length of the relationship. When the boyfriend decides the relationship is over, the women are homeless and without financial support.

The Law Commission considered this problem in 2007 and recommended that if couples had lived together for a specified number of years (between two and five), rights would automatically be acquired, unless the parties had deliberately opted out of the scheme by entering into a written agreement to that effect. The Government chose not to introduce such legislation and with this latest announcement as to civil partnerships, may feel that it has now done enough.

This won’t satisfy the campaigners, but I would argue that it would not be appropriate to threaten the autonomy of cohabiting couples by automatically imposing a legal relationship upon them by stealth, when they have deliberately chosen not to marry or enter into a civil partnership. The correct route is surely to provide better education and advice about rights, especially to young women, so that they understand the implications of their relationship at the start.

Judith Fitton is a partner in our Family department.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update.

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