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Government response to Women & Equalities Committee's Report on the rights of cohabiting partners

Posted on 28 February 2023

In August 2022, the Women & Equalities Committee published their report on the rights of cohabiting partners. They considered that the current law relating to cohabitants can be expensive, unclear, complicated and unfair. They noted that some 46% of the population in England & Wales wrongly believe that "common law marriage" exists, a figure they described as "staggering". They noted that women, and ethnic minorities are disproportionately adversely affected by the current regime (or lack of one). They made a number of recommendations, including for the adoption of an "opt-out" cohabitation scheme, as proposed by the Law Commission in its 2007 report.

The Government's response was published in November. The recommendations of the report were largely rejected.

While the Government agreed that it is a concern that so many people believe in common law marriage, it considered that the Department for Education's statutory guidance on relationships education includes that pupils should be aware of what marriage is, including its legal status and that it differs from cohabiting relationships. It didn't consider a national campaign necessary, but will consider how to raise awareness "within the context of existing frameworks". It rejected the recommendation that family law should be reformed to better protect cohabiting couples and their children from financial hardship in the event of separation. Its position was that, given there is work underway on the law of marriage, and the Government has committed to conduct a review of the law on financial provision on divorce, it must complete those processes before looking at any provision for cohabiting couples. It also noted that the Law commission's 2007 recommendations on the rights of cohabiting couples are 15 years old and that there would need to be a review but also a fresh consultation. It rejected the recommended reform of provision on intestacy and family provision claims on death for cohabiting partners, and the recommended review of the inheritance tax regime to bring parity between cohabiting partners and married couples.

Sandra Davis says: The Law Commission's 2007 report and recommendations were a missed opportunity for couples in cohabiting relationships to be given better protection. The fact that so many couples already believe they have some protection, on the basis of the (incorrect) idea that they are in a "common law marriage" is extremely concerning, and it is disappointing that, despite the recommendations of the Women & Equalities Committee report, 15 years after the Law Commission report, that there is still so little appetite at Government level for much-needed reform. Better education of the public to understand the protection (or lack of it) they may have on relationship breakdown is crucial, particularly for those partners who have given up work to look after children on the assumption that they will be treated in a similar way to a divorcing spouse or civil partner. In practical terms, those considering cohabitation need to consider more carefully the arrangements they will enter into including, for example, how any property they purchase should be held between them and what their financial responsibilities will be. The idea that everything will "work out" can be an extremely dangerous one.

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