New rights for cohabiting families?

The Women and Equalities Committee recently confirmed that they would be launching an inquiry to explore and consider the rights of cohabiting partners in England and Wales. More legal protection is needed for cohabiting families (the fastest growing family type in the UK according to the Office for National Statistics) who separate, that doesn’t rely on property law.

Unlike married couples, cohabiting couples have much less legal protection as they do not have the ability to make certain claims on finances and property which are available to married persons. There are provisions for child arrangements, but they come with limitations.

Often when considering the rights of cohabiting couples, we look to property law to resolve matters. Complexities can arise where one person is less financially stable than the other, for example if they stopped working to manage the family home. Upon separation, they could find themselves in a vulnerable position where they have little money of their own, little pension provision, and often no property of their own either.

When cohabiting couples with children split up, we can rely on schedule 1 of the Children Act 1989. These provisions give the court powers to ensure that the children of cohabiting couples have their housing and financial needs met even if their main carer doesn’t own the family home. Whilst this provision sounds appropriate on the surface, it only works if the parent who owns the family home has the financial means to either purchase a new property or privately rent. Similarly, the main carer who is staying in the property needs to be confident that they can make the necessary payments such the mortgage and utility bills.

In the case of White v White [2000], the judge emphasised that “there should be no bias in favour of the money-earner and against the homemaker and child-carer”. The judge sought to ensure that for families where traditional genders norms were perpetuated, this did not put either party in a more favourable or less favourable position. However, until the rights of cohabiting couples change, family lawyers are unable to adopt this same thought process. Instead, we must look at the property and understand how that is owned.

These are some of reasons why The Women and Equalities Committee has opened their inquiry into cohabiting families, and many family lawyers and other practitioners in the family law sphere will be welcoming of their thoughts, comments and conclusions.

If you are a cohabiting couple facing separation, please contact us to find out how we can help you.