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Landmark civil partnership ruling sparks call to change law for cohabiting couples

As news breaks that an opposite-sex couple have won their legal battle to have a civil partnership instead of a marriage, calls have been renewed for the law to be urgently reformed in relation to cohabitees.

Since March 2014, same-sex couples have had the choice of either entering into a civil partnership or getting married whereas opposite-sex couples have not.

Rebecca Steinfeld and Charles Keidan, who've never wanted to marry and say a civil partnership fits their beliefs and ideologies far better, argued this was discriminatory.

And now the Supreme Court has agreed with them, unanimously ruling that the Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights.

Extending civil partnerships

In a civil partnership, a couple is entitled to the same legal treatment in terms of inheritance, tax, pensions and next-of-kin arrangements as marriage.

Since the 2004 Act came into force, many civil partners have converted their relationship status to marriage and the Government was looking at doing away with civil partnerships altogether.

But now, although this latest ruling does not compel the Government to change the law, it is thought likely that it will look again at extending civil partnerships to all, something that some cohabitees, who don't feel that marriage is for them, would be interested in.

More 'pressing issue' of protecting cohabitees

At the same time, experts believe the time is right to look at 'the more pressing issue' of reforming the law to protect couples who live together. Countries such as Australia, Canada and Scotland already legally recognise cohabiting relationships and provide legal protection.

Graeme Fraser, family law group Resolution's national spokesperson on co-habitation, says: "The existing law is discriminatory, in particular for women who have brought up children within a family relationship for perhaps 20 or even 30 years to be left in poverty because only the financial contribution of their significantly wealthier partner is taken into account.

"It is not right or fair that the children of such relationships fare worse than children of married couples should their parents separate or one of them is left bereaved.

"Introducing such remedies would enable such women to obtain financial redress for them and their children as of right from their wealthier partners without reliance on the state and increasing strain on social security.'

Slow progress

For a number of years now, calls have been made from both within and outside Parliament for reform of the law relating to cohabitation with Resolution urging "at least basic legal rights for couples who live together if they separate" and a new system giving eligible cohabitees, who can prove they are in a committed relationship, a legal right to apply to the courts for certain financial orders if they separate.

But progress is incredibly slow.

The Cohabitation Rights Bill had its second reading in 2014 but got no further. A similar bill was introduced to the House of Lords in June 2016 and a House of Commons briefing paper was published in March 2017 to summarise the position in England and Wales for MPs' reference.

In November last year, Green Party MP, Caroline Lucas, tabled an Early Day Motion (EDM) calling for legal rights for cohabitees who separate. It currently has 23 signatures.

Despite a survey revealing that 57 per cent of MPs believe the law needs to be changed to provide greater protection for unmarried couples on separation, sadly the legal position remains precarious for cohabitees.

Ways to make cohabiting legally safe

However, there are things cohabiting couples can do to protect themselves legally and financially including:

  • Taking out a Cohabitation Agreement - an uncomplicated way of detailing exactly who owns what and in what proportions, what financial arrangements a couple has decided to make while living together and how property, income and assets should be divided in the event of a split;
  • Making a Declaration of Trust. This is often incorporated into a Cohabitation Agreement and is a binding agreement confirming what share of the property each partner owns, how the proceeds will be divided if it is sold as well as things like who is going to pay the mortgage and in what proportions. They are also useful if buying a home with a friend, sibling, parent or grandparent.
  • Making it clear in your Will exactly what you want to happen if one of you dies is particularly important when you are cohabiting as, unlike married couples, as a cohabitee you don't have an automatic right to your partner's estate if one of you dies without making a Will.

Lucia Mills at Wards Solicitors specialises in cohabitation disputes and cohabitation law