Children go through parental separation too
I am quite often taken aback at the number of people I come across, both personally and
professionally, who think that cohabiting with their partner will, in time, afford them the same legal
protection as if they were married. Nothing could be further from the truth. It’s a myth. Common
law marriage doesn’t exist. There is very little legal protection. We as family law practitioners are
fully aware of this fact but the wider general public seems to remain unaware.
In its report of August 2022 (1), The Women and Equalities Committee sets out details of family law
reform it wants to see, to ensure that cohabiting couples and their children are better protected
financially, in the event of a relationship breakdown, or indeed if their partner passes away. Those
recommendations included a public awareness campaign to highlight the legal distinction of
marriage, civil partnership and cohabiting; a targeted campaign at women in religious communities;
an opt out cohabitation scheme (originally proposed by the Law Commission in 2007); intestacy and
financial provision and reform to inheritance tax.
The Government has taken time to consider those proposals and has rejected them (2) as they are
committed to concluding their work in respect of marriage reform and financial provision on divorce,
before any further consideration can be given to proposals for cohabiting couples.
So, where does that leave the fastest growing family type, which stood at approximately 3.6 million
cohabiting couples in 2021? Clearly, without much protection. It has been 15 years since the Law
Commission made its original proposal for an opt out cohabitation scheme. Will it be another 15
year wait before there is any progress? Quite possibly.
Responding to the Governments rejection of the proposals, the Rt Hon Caroline Nokes MP, Chair of
the Women and Equalities Committee said:
“It is deeply disappointing that the Government has closed off the possibility of better legal
protections for cohabiting partners for the foreseeable future.”
“In doing so it relies on flawed logic. Weddings law and financial provision on divorce are wholly
separate areas of family law. There is no reason the Government should not prioritise law reform for
cohabiting partners alongside this.”
“Moreover, changes to weddings and divorce law could take many years. This response effectively
kicks the issue into the long grass and risks leaving a growing number of cohabitants financially
The Government did however partially accept two proposals in respect of a public awareness
campaign to highlight the legal distinction between marriage, civil partnership and cohabiting and a
targeted campaign at women in religious communities.
The Government “agrees that it is a concern that so many people believe there is such a thing as a
‘common law marriage’, which is an erroneous belief that after a certain amount of time living
together, the law treats cohabitants as if they were married.” That is why they are committed to further consider to how to raise public awareness within the frameworks already in place. But what
does that mean?
In respect of raising awareness for women within religious communities, it means waiting for the
Government to publish their response to the Law Commission’s report on weddings law, published
on 19 July 2022.
But what about raising general public awareness? The Government only partially accepted this
recommendation because they have already demonstrated a commitment in this area. That
commitment is contained within the Department of Education statutory guidelines for schools,
namely that by the end of secondary school pupils should know “what marriage is, including their
legal status e.g. that marriage carries legal rights and protections not available to couples who are
cohabiting or who have married, for example, in an unregistered religious ceremony.” (3)
Hands up who thinks a teenager will remember, let alone consider, what they were taught about the
legal distinction between marriage, civil partnership and cohabiting years later. I very much doubt it.
The difficulty though is that when children are in school, it is the last time that the Government has a
captive audience before our young people step into adulthood. Once you leave school, that’s it: no
captive audience. But that is not a good enough response from the Government. There does need
to be much greater consideration to ensuring that people are fully aware of the legal distinctions
between marriage and cohabitation. Let us hope that the Government does something sooner
rather than later, to raise awareness as I certainly do not think the stop date for such information
should be school age.