Government largely rejects automatic rights for cohabiting couples

In response to a report from the Women and Equalities Committee on rights for cohabiting couples – to which we submitted evidence last year

In response to a report from the Women and Equalities Committee on rights for cohabiting couples – to which we submitted evidence last year – the government has largely rejected their proposals.

Two of the six proposals were ‘partially accepted’: the first relating to awareness of the legal distinctions between marriage, civil partnership and cohabitation; the second to awareness within religious communities of the consequences of non-legally binding wedding and a legal marriage.

Three proposals were rejected outright: proposal for an ‘opt-out’ scheme that gives cohabiting couples automatic rights in the event of separation; proposals for family provision for cohabiting partners in the event of death; and a proposal to equalise inheritance tax for cohabiting couples in the same way as for married couples.

Just one proposal was accepted in principle: the proposal to publish clear guidelines on how pension schemes should treat cohabiting partners.

Many family lawyers have been pushing for equal rights for cohabiting couples for years. It is unsurprising that it must be deeply uncomfortable to have to explain to an abandoned or bereaved partner why they have few or no rights over their ex-partner’s income or estate following separation or death.

But there is so much more to this than the appearance of inequality. We have made the case against such rights for some time now, in August when the committee published their report, in December last year when I submitted my evidence to the committee, in our submission in July last year, and then back in 2015 and 2016. You can watch a short video clip of my submission here

The heart of the matter is that the state – indeed most states and societies throughout history – regulates marriage in the first place in order to encourage men to invest in their future offspring by bonding with the mother of their children. This of course does not mean that couples have to have children or even plans for children in order to marry. It just explains the reason society regulates marriage. The reality is that 90 per cent of married couples do have children. It is for this reason that we have also supported civil partnerships. It may be a historical anomaly resulting from the stepped introduction of same sex marriage. But as an act of commitment, it replicates marriage in all but name.

In contrast, there is no government case for supporting informal undocumented cohabitation. It simply does not provide the same encouragement for men to bond with the mothers of their children. It requires no intentional act or public statement of intent. This is not to say that cohabiting parents can’t do as well a job as couples and as parents. They can. But the odds are stacked against, as study after study attests, as does the research I am currently doing for my PhD at the University of Bristol.

Quite simply giving automatic rights to cohabiting couples undermines the act of commitment. It does not require a clear decision about the future, as marriage automatically does. It does not require the affirmation and accountability of that decision made in front of family and friends. Couples can do these things without marrying. But they are optional. With marriage they are part of the process. It is these two acts that form the basis of clear and secure commitment. Remove the need for these and you undermine the basis of commitment.

Equal rights for cohabiting couples would create far more problems that they solved.

As my colleague and former high court judge Sir Paul Coleridge has also argued, giving rights automatically to couples whether they want it or not is profoundly illiberal. Moreover it will provide a whole new grey area of disputes for the lawyers to settle. If you apply cohabiting rights after a matter of two or five years living together, when did that time period begin? Exactly when did couples move in together? Do both of you agree on that date? US research says couples rarely do. And if one partner refuses to accept that there was ever a relationship, how do you prove it? It’s not as if the courts aren’t bunged up enough as it is.

The government’s logic for rejecting these proposals mostly boils down to waiting for the dust to settle on proposed new marriage laws. But whatever their reasoning, they’ve done the right thing.

Harry Benson, Research Director, 1st November 2022


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