Unresolved Problems in the Law in Terms of Cohabitation

The high growth of cohabitation in the United Kingdom and the absence of legal acknowledgement has led in many areas of law needing reform by the law commission. Cohabitation, compared to marriage, do not have formal requirements of a start and end of a relationship. A cohabitation report was published in 2007 illustrating the need of available remedies for those who are under the breakdown of their relationships. In this essay, these issues will be looked analysed.

The Law Commission’s proposal to have a similar definition for cohabitees to marriage was heavily criticised and rejected. Instead other definitions were adopted as cohabitants being ‘co-residence’ for a short period of time for non-parents. This lacks any depth and considerations to other cohabitees who prefer not to receive the title of ‘marriage’ in a piece of paper having the same intentions as married couple but not receiving the same recognition by the law. This shows a lack of equality towards those people that may want to keep their relationship status as private as possible without the law interfering. This further implies that human rights have been breached under Article 8 (respect for home, private and family life) and Article 14 (non-discrimination) of the European Convention of Human Rights. The law commission defined cohabitation again in the intestacy report by saying they live together in the same home as a ‘spouse like relationship’. This is a definition which should be adopted without causing any negative implications to cohabitants assuming all relationships will not last. Article 8 does not give fundamental rights of their property which is owned by the other cohabitant. A partner who lives in an apartment owned by their cohabitant can associate the property as ‘their’ home under this Article, regardless of having no right in the property. Article 8 is relevant because anyone is entitled to respect for their family life, including cohabitees as well as married couples and should not be discriminated solely because they do not follow traditions.

There is a significant growth of society accepting cohabitation as a substitute of marriage. Although cohabitation is not formalized this does not mean that their relationship is less significant. It cannot be assumed that cohabitees do not show the seriousness of their relationship and commitment just because they are not married. In marriage, there is clear implications that this relationship should last ‘forever’. Seeing Non-discrimination issues with equality is where consideration is applied concerning the Law Commission’s proposals. Freedom of choice should be considered. This has been perfectly pointed out by Hale in her article saying those who do not want to get married do not need legal implications pointed at them. This does not seem logical in the eye of the public. This implies that the law is siding with traditions and religions instead of viewing today’s society. This could be interpreted to mean that the law is out-dated, therefore reform is the only necessary solution.

Concern is female cohabitants who due to looking after her children and household could be left in financial hardship when the relationship ends. In Burns v Burns this has been the perfect example of such injustice although this does not entirely apply to today’s society. However, for spouses and civil partners when the relationship ends, access the Matrimonial Act 1973 (MCA) and the Civil Partnership Act (CPA) is available where the courts will have the power to distribute property as they reasonably see fit. This means the courts consider children as a paramount concern, who and where the child will be living with and the parent looking after the child could potentially stay in the family home. As well as child and spousal maintenance being given. With cohabitants, they do not have such a system and therefore would need to go through various areas of law such as trusts, property, and contract to resolve issues. There are no legal guidelines and therefore it would have to be decided between them causing more conflict. Cohabitees are not willing to get married could be due to cost if the relationship terminates; going through various areas of law to resolve these issues does not seem to be fair. Why should cohabitants have to go through this difficulty and those married having an easier path? The Law Commission suggested that this reform did not suggest that they have the exact same rights as married couples, but for cohabitants to be recognised, that there are a range of different commitment in any relationship and therefore should not be included in one category.

However, this reform would not do such a thing; it gives the opportunity of a scheme which cohabitants could qualify in. It Is not suggesting that this is the better path to take instead of marriage but is giving society an alternative. Marriage would nonetheless remain distinctive due to the financial support they would be receiving in law which cohabitants would not receive. This has been introduced by Australia and Canada and seems to be adequate. However, cohabitants could claim an interest in property under section 14 of the Trusts of Land and Trustees Act 1996. One party may have a beneficial interest in the property. However, this can cause ‘uncertainty and high litigation costs’ suggested by Lord Walker. This leads to parties ‘to reinterpret the past in self-explanatory or vengeful terms’ mentioned in Stack v Dowden by Baroness Hale. Therefore, having that scheme that the Law Commission suggested is the right approach to take.

There are inadequate definitions of couples, being very biased and avoiding comparing this to marriage. This causes injustice as whole because the law assumes that relationships of cohabitees will not last, being temporary. This causes negative assumptions to those who in fact have lived for many years together. There is also a lack of legal recognition in terms of female cohabitees which has not been considered causing hardships to those who should be treated the same as married couples. In conclusion, there are clear explanations and indications that the law in terms of cohabiting couples needs reform. 

07 July 2022
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