The news the other day that cohabiting couple families are the fastest growing family type should come as no surprise to anyone. Cohabitation has been steadily increasing for many years now, whilst the number of married couples has pretty well flat-lined. It is also not news that the cohabiting couple is the second largest family type – they passed lone parent families about three years ago. Still, it is clear that, for whatever reasons, more people are choosing to cohabit, even if that does not necessarily mean that fewer people are choosing to marry.
Before I proceed I should say that we probably shouldn’t get too carried away with all of this just yet. To be honest, the title to this post is a little premature. Even if the current trends continue at the present rates, it will (by my completely unreliable calculation) be another 40-odd years before there are as many cohabiting couple families as married couple families.
Nevertheless, it is clearly appropriate to consider cohabiting couple families to be an important element of our society. 3.3 million families (not to mention the children of those families) represent a very large group of people.
And shouldn’t those people be properly protected by the law if their relationships break down? Why is it that society considers that it is necessary and proper to provide financial protection for divorcing couples, but not for cohabiting couples? After all, at the end of a long relationship the only material difference between what a cohabiting couple have been through and what a married couple have been through is the signing of a piece of paper at the outset. Take, for example, a woman who gave up her career to bring up a family, all the while living in her partner’s home. Is it right that she should be left with nothing – severely disadvantaged on the job market, and without even anywhere to live?
Surely, therefore, it is now time to give basic legal rights to cohabitees when they separate.
Of course, there are many who oppose such a move, but their arguments simply don’t hold water. They say, for example, that if they wanted such protections cohabitees would have got married, and that cohabitees know what they are doing, and make the choice not to have the same protections as married couples.
But how many cohabiting couples actually give consideration to any such matters when they move in together? I’m sure some do, but surely the vast majority decide nothing more than to live under the same roof. They don’t make a conscious decision not to marry.
And many of them are cohabiting under a delusion anyway. The myth of the ‘common law marriage’ is still very much alive and well. A huge proportion of the population believe that after living together for a certain period they are recognised by the common law as being married to their partners, and they therefore have the same rights as married couples. According to Resolution, the association of family lawyers, 47 per cent of the public aged 18-34 think cohabiting couples have the same legal rights as their married counterparts. Of course they don’t, but this gives the lie to the argument that cohabiting couples choose not to have the same legal rights as married couples.
And then there is the argument that those in favour of legal rights for cohabitees are trying to make cohabitation the same as marriage. They are not. No one is arguing that cohabitees should have the same rights. They are simply arguing that they be given basic rights, so that obvious injustices, such as the woman mentioned above, are avoided. Resolution, for example, are proposing that cohabitants meeting eligibility criteria indicating a committed relationship would have a right to apply for certain financial orders if they separate. This right would be automatic unless the couple chooses to ‘opt out’. The court would be able to make the same types of orders as they do currently on divorce, but on a very different and more limited basis.
Resolution’s proposals are very similar to the recommendations made by the Law Commission back in 2007. Sadly, those recommendations were shelved by the government. Perhaps the latest figures from the Office for National Statistics indicate that it is time to re-visit them?