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At the heart of the debates on reform has been the issue of whether the law should take a functional or form-based approach to relationship regulation. With equal marriage and equal civil partnership now a reality in England and Wales, have we decided that formalised relationship choice is sufficient? Anne Barlow discusses whether enough has been achieved or whether there is still an active role for family law to play in regulating wider forms of coupledom.

Image courtesy of interviewee. February 14, 2024

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This video video discusses the ongoing debate in England and Wales regarding family law protections for non-traditional couples, particularly cohabiting and same-sex couples. Historically, the legal system has favored married couples and provided them with substantial protections under family law, while cohabiting couples have been left largely unprotected in the event of relationship breakdowns.

Despite social acceptance of cohabitation—evidenced by the fact that 3.5 million couples live together without marriage—these couples typically do not receive the same legal remedies as those who are married or in civil partnerships. The narrative indicates that many people mistakenly believe in "common law marriage," thinking cohabitation offers similar rights to marriage, unaware that this legal concept was abolished in 1753.

This video video emphasizes that family law aims to protect economically vulnerable members of a family, predominantly children and partners with reduced earning potential due to caretaking roles. Co-habitants face a stark reality where property law governs their financial rights following a relationship breakdown, often leading to unfair outcomes, particularly for those who may have sacrificed their careers for family responsibilities.

Calls for reform argue that the law should recognize the functional similarities between cohabiting and married couples, suggesting that legal protections need to encompass all family forms to ensure that children and economically disadvantaged partners are not left vulnerable. The author advocates for legal changes to address the disparities in protections and to create mechanisms that acknowledge the contributions of non-financial caretakers. Overall, a responsive legal framework is deemed necessary to ensure fair treatment for all family structures and their financial stability upon separation or bereavement.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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But in England and Wales, there's been a,

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a long running debate about the best way to

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provide family law protection to non-traditional couples,

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if I can put it like that.

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So same sex couples

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or couples who lived together without,

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being married originally were,

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were considered nontraditional.

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And, and many people, certainly

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before same sex couples became recognized in England

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and Wales thought that if people didn't marry,

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then they didn't deserve any family law protection.

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Yet family law is there

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to protect vulnerable members of family.

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Now, typically children,

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but also,

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spouses if there's economic disparity

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and often very gendered roles about who looks

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after the children and therefore can't work.

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And those who, who actually are the, the,

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so-called breadwinners and go out

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and do most of the earning, if not all of the earning.

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So originally people thought that, that,

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that if you didn't get married,

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you should ignore Cohabitants.

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And so the form of the relationship, whether

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or not you were married in

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that heterosexual context was what counted.

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And if not, well that was just tough, essentially,

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if you didn't get,

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any remedies if the relationship broke down.

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So since then, there's been far greater recognition

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of same sex couples.

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We now have, same-sex marriage as, as well

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as same sex civil partnerships.

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And then civil partnerships

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that were originally just same sex have also been extended

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to, heterosexual couples.

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So we call our situation now

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as having from a form-based point of view, equal marriage

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and equal civil partnerships.

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So e essentially everybody has,

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pretty much has the choice

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of going into a formalized relationship

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where the law offers family law protection.

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And, and where this matters most is when people,

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either well, when the relationship rates down

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or one partner dies, because that's when family law steps in

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and protects, if you like, from an economic point of view,

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that the weaker members of the family economically

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to give them certain rights and remedies.

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Um, so that's where we are.

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Um, the thing is that people are still living together

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without getting married or, civil partnering.

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Um, and that's the still the fastest family type in, in,

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England, Wales at 3.5 million couples who do that.

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And they have very little

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family law protection, if the relationship goes wrong.

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Yet the argument is they're doing the same exact same thing

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as civil partners

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or married couples, in

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that they tend to bring up their children.

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One, they divide the working

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and the caring very unequally often.

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And the, the, the statistics show that that's the case.

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That's not just an assumption.

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And therefore, the the argument runs.

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You should look at the function rather than

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the form of a family.

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Uh, in order to decide when family law protection should

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apply far as couples go,

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there's no longer any difference between same sex

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and opposite sex couples.

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Uh, both can marry, both can civil partner,

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and they get the same protection.

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So unlike some other countries such as France, for example,

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where you can choose a, a, a lesser form of protection,

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the French pacs, where you agree

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to different rights than those as if you were married,

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both civil partnership

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and marriage have exactly the same rights

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in family law.

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Um, and that essentially means that from a financial point

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of view, when the relationship breaks down, you share the,

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assets, the partnership

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or matrimonial assets, start off with an equal sharing

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position, but that can be adjusted by the courts

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to take account of the differing needs

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and the differing roles

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after the relationship's broken down in terms of caring for,

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for children, and or elderly relatives.

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In some situations, perhaps, perhaps,

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and your, your, you, you

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divide the assets on the basis

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of an established family law approach.

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Um, if you just live together,

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then it's just a matter of property law.

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And that's actually not very flexible.

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It doesn't take account of what's called in the married

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and civil partnership context,

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relationship generated disadvantage whereby

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through having entered into the relationship

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and taken on a particular role within the relationship,

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you have lost out in terms of your own financial position.

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So, you know, typically people will give up work

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or just work part-time

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or take a particular job that is flexible around childcare.

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And that's most often women. Not always, of course.

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Um, but, that means that the end of the relationship,

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you can't just go back to where you were

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at the point when you entered the relationship.

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And in the married

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and civil partnership context, that is compensated for

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where there are sufficient assets

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in the cohabitation context that is totally irrelevant to

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how assets are divided.

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You just look at whether

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or not the property is owned, in a particular way,

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whether you made an agreement.

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Um, and also the, the,

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because the Waco habitation often gets off the ground is one

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partner moves in to the other partner's property,

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and then people just don't do anything about

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changing the way the property is owned,

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and they perhaps spend the other partner's money on, on

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general household living or holidays

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or buying the washing machine or what, whatever it is.

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Um, and yes, at the end of that relationship that you,

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you just look purely at the ownership

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unless you can prove there was a, a,

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what they call a constructive trust that has a risen

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that indicates that, that, that you,

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you really had a common intention

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to share the property differently to the legal title,

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and you can prove that and acted on that basis.

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Now, that is very expensive lit litigation tends to go

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to the high court, it lasts for days.

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It, it's not, it, it,

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it depends on everybody getting all their receipts together

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and being able to demonstrate exactly what the sort of,

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intention was

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and trailing through emails, the accounts, those sorts

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of things to show who actually made contributions, how

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that was active, common intention to share it or not.

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And that's what cohabitants face,

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very often in this, jurisdiction

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and which is criticized

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because in the marriage context, you just say, well,

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the home is a, a, a, a shared asset,

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and it should be divided according to need.

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Or equally, if the partners are in a, in, in a clear,

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clear situation where they can afford to

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continue their lives with their own assets,

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their own earnings after the relationship rate stand.

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So that's the position on relationship breakdown

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on inheritance.

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If one of you dies.

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Um, the situation in the married context is that

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if you haven't made a will,

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and all the assets go to the spouse, typically, and

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unless the, the, the property is extremely valuable,

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and that even if you leave all your assets

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to the dog's home or something

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and your spouse is cut out of your will,

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your the spouse has the right to go

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and get what they would've got on divorce, to the court.

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And, and, again, that's a fairly well understood

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how assets should be divided in, in that way,

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and you wouldn't end up panelists.

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In the cohabitation context,

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there has been some movement towards, a allow, well,

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there is a law now that allows a cohabitants

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who has lived in the same household with their, partner

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for at least two years to apply to the, the court

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for reasonable financial provision,

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but that is just limited to what they need

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for their maintenance.

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So it's far less generous than

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what a spouse would get in that

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or a civil partner would get in that same situation.

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So that's, that's, those are the main differences.

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There's also tax implications so that if even if a home is

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jointly owned, you're paying you,

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you pay tax on the transfer between the partners

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because you are not married

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or civil partnered, which you don't in, in that,

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in that other context.

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And so cohabitants lose out even though,

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and I think this is the trouble that socially

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unlike in some other countries socially,

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cohabitation is totally accepted, in, in, in terms

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of people not seeing any difference socially between those

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who are married and those who are living together.

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And the longer that relationship goes on, the more

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that is the case and people just conduct family lives in,

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in the same sorts of ways.

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Yet the law makes this very harsh distinction,

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or hard distinction, I should say, at the end.

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And, you know, maybe some people,

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and definitely some people are choosing that,

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and that is exactly what they want, and they know about it.

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Uh, whereas the, the other problem that we have is

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that we have something called the common law marriage myth,

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where people believe that they are protected

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and they have legal rights, and actually they don't.

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And that's the,

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the other issue about not taking a functional

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approach in England and Wales.

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Um, common law marriage, which is like informal marriage,

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which under which you would rec be recognized as a spouse,

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was abolished in 1753, so that's an awful long time ago.

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And the,

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the phrase though is in the language

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and people think wrongly that when they've lived together,

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that they get the same rights as if they're married.

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And the law has confused this

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because in some situations you are

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treated as if you are married.

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Um, so if you are in a rented tenancy rather than a property

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that you've bought, you, you may as a cabinet be able

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to succeed directly to the tenancy,

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but it's quite complicated.

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It depends on which type of tenancy

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and how long you've lived together

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and things of that nature.

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And it's different lengths of time according

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to whether it's social housing

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or private rented housing, et cetera.

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So it, it, it's not straightforward,

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but people, so, so there,

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and in the social security context, if you are in receipt

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of means tested welfare benefits, if you live together,

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you are treated as if you are married.

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And so this myth, if you like, is fueled by some

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specific legal situations where you are treated

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as if you are married, but at the,

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and that, that then leads people to think they're treated

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as if they're married or a civil partner in all situations.

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And that really isn't the case.

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And particularly at the end of a relationship

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or if somebody dies,

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and particularly as I say, when relationships break down,

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you, you, there's nothing you can do

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unless your partner agrees you cannot change your position.

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Whereas in the married context, the fact

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that you have contributed in a non-financial way

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to a relationship entitles you to a share of the, the,

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the matrimonial or civil partnership assets.

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Uh, so you are in a, in a very harsh situation,

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if you've believed yourself to be exactly the same

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as a married person, and you are the weaker economic

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partner,

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because you get, you get nothing,

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you are not entitled to anything.

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You're not entitled to maintenance.

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What alimony as it is, it is called in the, in the states,

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you are not entitled to any automatic share of, yes,

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it's on the basis of your non-financial con contributions,

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unless, as I've explained, you are either a joint owner and,

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and you've made a declaration of how you want

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to hold the property, and

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or you then show there's a common intention

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to hold the property in a different way

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to the way the legal title, would,

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would demonstrate some of the research

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that we have undertaken.

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Um, certainly the, the British Social Attitude Survey that

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amongst people with children, so children under 18,

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55% of both cohabiting couples

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and married couples believe that

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cohabitants have exactly the same rights as married couples.

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And we've done longitudinal research since 2000,

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and the last time was in 2019 to see how

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that belief, has changed over time

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and it has reduced a little bit.

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It started at at around 60%

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and it's gone down, in the general population

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to 47

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or 8%, somewhere in just under 50% essentially.

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Um, but it hasn't come down really radically

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and amongst those with children.

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So the, the, the population that is most affected

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there is still the, the majority of people who believe

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that they have the same rights as

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the cohabitants have the same rights as if they're married.

14:27.425 --> 14:30.485
So it's not just wishful thinking among the,

14:30.505 --> 14:32.485
the cohabitation population.

14:32.555 --> 14:36.925
That myth is out there in the whole, of, of,

14:36.925 --> 14:38.725
of British society if you like.

14:39.585 --> 14:44.265
So people are, are reorganizing their lives

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on a, on a false basis.

14:46.765 --> 14:47.865
And there's this gap

14:48.495 --> 14:51.285
because schools treat you in the

14:51.285 --> 14:52.445
same way as if you are married.

14:53.025 --> 14:56.445
Um, if you, if you go to hospital, your partner is,

14:56.545 --> 14:59.725
is considered to be the person that you can inform.

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Um, you, you are treated if, if you are married.

15:02.485 --> 15:05.325
There are many situations when you come up against it,

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as I've already mentioned, the social security situation.

15:08.725 --> 15:12.085
If you are somebody in receipt of benefits, if, if you apply

15:12.085 --> 15:15.925
for car insurance, they often say, is there common law?

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Um, are you a common law spouse?

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And even though that's not a legal term, it's a category

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that reinforces this myth that people are treated the same.

15:26.305 --> 15:28.445
So then the question becomes,

15:28.475 --> 15:30.885
because at the end, when you are most effective,

15:30.885 --> 15:33.365
there's no route back for you to change things.

15:33.985 --> 15:35.485
Should the law step in

15:36.065 --> 15:38.165
and say, well, functionally you are

15:38.405 --> 15:39.645
behaving as if you are married.

15:40.305 --> 15:42.125
You haven't entered into a civil partnership,

15:42.125 --> 15:43.885
you haven't entered into a marriage.

15:43.885 --> 15:46.805
And there are lots of reasons why people don't do that.

15:47.585 --> 15:50.285
Um, and, and these are not always

15:50.395 --> 15:54.445
because they don't want to be married or civil partnered.

15:54.985 --> 15:57.725
So, therefore I think

15:57.725 --> 15:59.845
because there's such a lot of misunderstanding,

15:59.965 --> 16:01.125
I think the law needs to step in

16:01.125 --> 16:02.405
and address it in a cohesive way.

16:02.405 --> 16:05.085
As I've mentioned, in some context it does do that,

16:05.505 --> 16:07.725
but in other contexts it absolutely doesn't.

16:07.985 --> 16:09.085
And that's another problem.

16:09.225 --> 16:13.085
The inconsistency in different areas of law as to

16:13.185 --> 16:16.445
how these couples are treated, yet they believe,

16:16.445 --> 16:20.405
the majority of them that they are, going

16:20.405 --> 16:22.725
to be treated the same in all contexts.

16:22.725 --> 16:24.405
And that absolutely isn't the case.

16:25.605 --> 16:29.345
So yes, you can enter a civil partnership, yes, you can,

16:29.555 --> 16:33.945
marry, but other research that we've done, people

16:34.555 --> 16:36.225
often just don't get around to it.

16:36.415 --> 16:38.065
They're often comforted by the fact

16:38.065 --> 16:39.985
that they think they've got the same rights.

16:40.655 --> 16:42.755
They may,

16:43.905 --> 16:46.435
they may be a bit superstitious about marrying

16:46.455 --> 16:49.915
or civil partnering, for one reason or another.

16:50.215 --> 16:52.115
But that sort of begs the question of whether

16:52.775 --> 16:54.755
in those contexts you should get no

16:55.175 --> 16:58.915
or very little reward for all the non,

16:58.985 --> 17:01.915
financial contribution you are making to a relationship

17:02.255 --> 17:03.835
and just be expected to go off

17:03.835 --> 17:07.235
and, completely start again from scratch.

17:07.545 --> 17:12.515
Even though that relationship has generated disadvantage

17:12.975 --> 17:16.315
to one of the spouses unevenly between the couple,

17:16.495 --> 17:19.115
and the other person keeps all their assets intact,

17:19.115 --> 17:20.795
and the cohabiting gets nothing.

17:20.985 --> 17:23.435
Obviously child support would have to be paid,

17:24.015 --> 17:27.235
but in terms of being able to find somewhere to live,

17:27.295 --> 17:28.315
afford the rent

17:28.895 --> 17:31.075
and those sorts of things,

17:31.335 --> 17:34.035
we do have some welfare benefits that can step in,

17:34.215 --> 17:38.755
but often people, fall very far financially at the end

17:38.755 --> 17:41.075
of a relationship, be

17:41.075 --> 17:45.915
because, there is no equivalent of trying to,

17:46.215 --> 17:50.885
at least give some assets that, that are relative

17:50.945 --> 17:52.005
to the standard of living.

17:52.145 --> 17:53.285
The family enjoyed

17:53.545 --> 17:55.885
before the relationship broke down, which is again,

17:55.885 --> 17:57.445
in contrast to the married and

17:57.505 --> 18:00.805
and civil partnership situation where that the, the,

18:00.805 --> 18:02.125
the standard of living of the family

18:02.125 --> 18:04.285
before breakdown is taken into account.

18:04.945 --> 18:08.285
The, the, the Ministry of Justice here,

18:08.345 --> 18:09.565
it has run a campaign.

18:10.065 --> 18:13.325
The law commission made recommendations actually to say

18:13.325 --> 18:14.605
that the law should be changed.

18:14.605 --> 18:16.405
There was an awful lot of publicity.

18:16.435 --> 18:21.245
There's a lot of articles in newspapers and on media.

18:21.865 --> 18:25.645
Um, there are websites by, for example,

18:25.705 --> 18:27.165
an agency called Advice Now,

18:27.165 --> 18:29.525
which is a charity which advises people,

18:29.585 --> 18:30.845
but often people don't know

18:30.845 --> 18:33.445
until it's too late what they should do.

18:34.225 --> 18:36.525
And people don't take a lot of notice of things.

18:37.605 --> 18:41.245
I think, you know, this is a human, well, a people,

18:41.245 --> 18:42.645
there's an optimism pie.

18:42.645 --> 18:45.125
People don't think their relationship is the one

18:45.125 --> 18:46.125
that's going to break down.

18:47.025 --> 18:50.925
And two people don't really focus on the law

18:51.375 --> 18:53.645
until the relationship is in trouble.

18:54.105 --> 18:57.165
And because agreement is really the only way out of it,

18:57.305 --> 18:58.965
or, you know, agreement to marry agreement

18:59.025 --> 19:00.205
to civil partner agreement

19:00.205 --> 19:05.165
to make a cohabitation agreement about the assets at

19:05.165 --> 19:07.685
that point, it's very difficult to do that

19:07.715 --> 19:09.285
because your partner

19:09.425 --> 19:12.165
and you are thinking in very different situations.

19:12.265 --> 19:14.205
Yet in a sense, the damage has been done.

19:14.265 --> 19:15.725
You know, you've, you've got children,

19:15.725 --> 19:18.285
you've reduced your earning power, you've maybe moved

19:18.285 --> 19:20.325
around the world or the country in order

19:20.345 --> 19:23.565
to support your partner without being, married.

19:23.985 --> 19:26.885
And your financial situation can't be redressed

19:26.905 --> 19:27.965
unless they agree.

19:28.115 --> 19:32.205
Whereas in the married context, it's seen a a as if

19:32.835 --> 19:35.565
it's appropriate to rebalance things,

19:35.885 --> 19:37.445
a at the end of the relationship.

19:38.025 --> 19:41.715
And the, the irony with marriage, the other irony

19:41.715 --> 19:44.395
with marriage is it is only when things go wrong.

19:44.455 --> 19:46.955
We have separate property during marriage in,

19:46.975 --> 19:48.915
in our jurisdiction,

19:49.895 --> 19:53.235
and it is only when things go wrong that the assets are

19:53.835 --> 19:57.555
redistributed to the couple, between the couple.

19:58.055 --> 19:59.995
Um, so it,

20:00.335 --> 20:01.755
but in the cohabitation context,

20:01.935 --> 20:05.875
the the separate property rule does, continue.

20:06.455 --> 20:08.355
And so you really are just down

20:08.355 --> 20:10.595
to property law and who owns what.

20:10.595 --> 20:13.475
There's no understanding that that sort

20:13.475 --> 20:16.995
of family law protection, if you like, that is given

20:17.575 --> 20:21.315
on relationship breakdown in when formalized

20:21.345 --> 20:22.755
relationships breakdown.

20:22.755 --> 20:24.035
And, and the question becomes,

20:24.105 --> 20:25.515
well, should that be the case?

20:25.515 --> 20:27.915
Because actually it's the children's standard of living,

20:28.405 --> 20:32.995
which in fact is reduced if they stay with the parent

20:33.055 --> 20:35.115
who has been the primary carer say,

20:35.895 --> 20:39.275
and is the one who's really strapped for cash

20:39.335 --> 20:41.275
and can't afford the rent

20:41.335 --> 20:44.555
or hasn't got enough, income to be able

20:44.555 --> 20:47.245
to obtain a mortgage and, and purchase a property

20:47.245 --> 20:48.365
or an apartment or whatever.

20:48.745 --> 20:51.925
It, it's very, it, it, it, it's very uneven.

20:52.105 --> 20:54.925
And the other issue with cohabitation is

20:54.925 --> 20:58.045
that the power in a relationship, it can be uneven.

20:58.145 --> 21:00.485
You know, one may know what the law actually is

21:01.025 --> 21:02.365
yet pretend to the other.

21:02.385 --> 21:06.285
And this has come up in our research as well,

21:06.865 --> 21:10.545
and pretend to the other that, we don't want

21:10.545 --> 21:11.905
to marry, we are a modern couple.

21:12.205 --> 21:14.625
We are equal. Why should we go

21:15.085 --> 21:17.225
for these old style relationships and,

21:17.245 --> 21:18.745
and essentially make excuses?

21:18.745 --> 21:20.665
And what they're really saying is, I don't want you

21:20.665 --> 21:23.385
to get your hands on my assets, but I do want you to look

21:23.385 --> 21:26.025
after my children for, for nothing.

21:26.125 --> 21:28.625
And if it goes wrong, to walk away,

21:29.015 --> 21:31.625
without any claim on the property.

21:32.325 --> 21:34.865
So that's, that's the other problem.

21:35.085 --> 21:38.505
And in abusive relationships, it makes it very difficult

21:38.645 --> 21:39.665
for somebody

21:39.665 --> 21:42.185
to leave an abusive relationship if they're going

21:42.185 --> 21:45.465
to have no financial, settlement

21:45.805 --> 21:49.345
or remedies when the relationship breaks down.

21:50.005 --> 21:53.505
And then of course, if somebody dies on top of the,

21:53.525 --> 21:55.105
the grief that one experiences,

21:55.335 --> 21:57.545
when the relationship hasn't broken down in those sorts

21:57.545 --> 22:01.465
of situations, you are ending, you are ending up with having

22:01.465 --> 22:04.185
to go to court, having to, to, in order to establish

22:04.655 --> 22:06.025
that you are a inhabitant

22:06.025 --> 22:09.745
and are eligible for some sort of financial support, limited

22:10.005 --> 22:11.625
to maintenance,

22:11.965 --> 22:13.225
and a a as well

22:13.225 --> 22:16.305
as pay inheritance tax if the property is owned,

22:16.935 --> 22:18.465
because you weren't married.

22:18.925 --> 22:21.545
And people just don't know that until it's too late.

22:21.545 --> 22:22.665
So there's no route back.

22:22.665 --> 22:26.505
And I think a safety net that meets people's needs

22:27.165 --> 22:29.505
at the very minimum, and particularly

22:29.555 --> 22:33.865
where there are children really should be, introduced so

22:33.865 --> 22:38.425
that people are not, faced with this shock,

22:38.805 --> 22:40.465
if you like, an unpleasant shock

22:40.845 --> 22:45.585
and open, open, as I say, to abuse by one part

22:45.585 --> 22:47.425
and misleading the other

22:47.605 --> 22:50.305
and having no easy redress for that.

22:51.225 --> 22:52.785
I mean, there, there, there have been some changes

22:52.925 --> 22:54.705
around bereavement damages.

22:55.005 --> 22:59.635
Um, so you can make a claim if it's somebody else's fault

22:59.665 --> 23:02.035
that your, your partner died an accident at

23:02.035 --> 23:03.075
work or road traffic.

23:03.145 --> 23:06.355
Cohabitants now can claim bereavement damages

23:06.455 --> 23:08.795
and some pensions may,

23:08.975 --> 23:12.595
but it depends on the terms of the pensions, extend

23:13.175 --> 23:15.235
to partners in that situation.

23:15.235 --> 23:17.275
But it's not always the case,

23:17.295 --> 23:20.675
and it's certainly not the case with the state pension,

23:20.675 --> 23:21.955
where somebody has contributed.

23:22.175 --> 23:24.875
You are not entitled unless you're espoused to

23:25.475 --> 23:26.875
a benefit from their

23:26.975 --> 23:29.835
or a civil partner to benefit from the contributions made

23:29.835 --> 23:31.635
by the other, partner.

23:32.855 --> 23:36.435
We have thought long

23:36.435 --> 23:38.635
and hard about the, the, the way forward.

23:39.055 --> 23:41.915
Um, I think that, I think

23:41.915 --> 23:44.515
because of the,

23:45.345 --> 23:50.165
the normative values in society, that when this is a,

23:50.245 --> 23:54.315
a, a matter of, of, of,

23:54.375 --> 23:57.635
of gender discrimination, actually, I mean, not direct,

23:57.815 --> 23:58.995
but indirectly

23:58.995 --> 24:01.395
because people think, you know what, if you think,

24:01.395 --> 24:02.435
well, what is a good mother?

24:03.295 --> 24:04.715
Um, it's a mother who looks

24:04.715 --> 24:07.435
after their children, you know, what is a good father?

24:07.505 --> 24:09.315
Well, yeah, they look after the children, not

24:09.315 --> 24:12.715
that it's the mother, it's still the primary carer role is

24:13.035 --> 24:14.115
identified more with mothers.

24:14.115 --> 24:17.395
And I think because mothers feel that, plus

24:17.395 --> 24:19.875
because of the gender pay gap in this country,

24:20.005 --> 24:23.035
women on average, less than men,

24:23.035 --> 24:24.275
significantly less than men.

24:24.615 --> 24:27.635
And so who, if you are making a financial decision,

24:27.655 --> 24:30.675
as a married couple or a a a civil partner couple,

24:30.935 --> 24:33.515
or a cohabiting couple, who is the one

24:33.515 --> 24:36.195
that decreases their work, either gives up completely

24:36.495 --> 24:38.995
or goes part-time, it's typically the partner

24:39.065 --> 24:40.195
with the lower income.

24:40.655 --> 24:42.515
That's typically the the mother.

24:43.135 --> 24:45.915
Um, if you are talking about the, the childcare situation.

24:46.575 --> 24:49.715
And so you are more likely to suffer

24:50.425 --> 24:53.155
this relationship generated disadvantage

24:53.155 --> 24:55.435
because you are not keeping up your earning capacity,

24:55.435 --> 24:56.875
your contact with the labor market

24:57.455 --> 25:02.355
and your, your ability to, to accumulate assets if you like.

25:02.775 --> 25:05.115
Um, you are devoting yourself to childcare,

25:05.115 --> 25:06.635
which you could say is priceless.

25:06.755 --> 25:08.715
I mean, what price do you put on that role?

25:09.335 --> 25:13.315
Um, and if that's evenly shared, well, fair enough,

25:13.315 --> 25:16.555
you are not suffering economic disadvantage in

25:16.555 --> 25:17.835
that same way.

25:18.335 --> 25:21.035
But it seems to fall on women much more that they do

25:21.035 --> 25:24.315
that perhaps because of the normative reinforcements of, of,

25:24.335 --> 25:27.835
of what expectations of mothers, are

25:28.735 --> 25:31.675
and that they tend to sort of flex their work

25:31.675 --> 25:34.995
around the children much more work locally, want

25:35.055 --> 25:37.755
to perhaps spend more time with their children more

25:38.665 --> 25:39.715
than the fathers.

25:39.835 --> 25:41.995
I, I, I totally appreciate that it's changing,

25:42.095 --> 25:45.355
but it's not changing really, really fast to the point

25:45.935 --> 25:49.035
or so the statistical evidence shows us to the point that,

25:49.105 --> 25:52.555
that it's the, the booties are on the other foot,

25:52.615 --> 25:54.555
or most people think

25:54.625 --> 25:56.395
that you should share these things equally,

25:56.835 --> 25:59.515
actually quite the reverse in terms of the attitudinal work.

25:59.515 --> 26:01.995
Certainly in this country, most people, the vast majority

26:02.015 --> 26:05.355
of people think the best family form is father working

26:05.355 --> 26:09.035
full-time, mother working part-time around the children

26:09.495 --> 26:10.675
or, or to give up work.

26:10.675 --> 26:13.555
If you had those two together, you, you are pretty much,

26:13.975 --> 26:15.755
80 90% of the country.

26:16.055 --> 26:18.515
So it's still very gendered.

26:18.895 --> 26:20.075
So I think

26:20.075 --> 26:23.595
therefore it's important that the law provides a safety net

26:24.135 --> 26:25.395
to, to step in

26:25.815 --> 26:30.315
and make sure that that poverty is not the outcome

26:30.695 --> 26:34.235
for people who often had no ch choice,

26:34.305 --> 26:36.595
because it takes two to marry, it takes two

26:36.595 --> 26:37.755
to agree to civil partner.

26:37.855 --> 26:40.075
You can't just do it on your own and protect yourself.

26:40.465 --> 26:42.795
That the meaning of your autonomy in

26:42.795 --> 26:45.725
The family context is, is actually much reduced.

26:45.825 --> 26:47.645
It, it means you both have to agree

26:47.665 --> 26:50.925
and maybe, you know, in the old days everybody got engaged,

26:51.035 --> 26:53.085
they got married and then they had their children.

26:53.185 --> 26:54.885
That's not the way we partner

26:54.945 --> 26:56.565
and parent in this country anymore.

26:56.665 --> 26:58.405
It, we do these things over time.

26:58.665 --> 27:00.205
The order you do them, there is,

27:00.745 --> 27:04.005
and it's a 85% of couples live together

27:04.005 --> 27:05.925
before they get married or civil partner.

27:06.115 --> 27:07.485
It's very, very, very high.

27:08.345 --> 27:12.755
So actually, if you then continue that relationship

27:12.935 --> 27:14.355
for a long period of time,

27:15.615 --> 27:17.555
why are you in such a different position?

27:18.175 --> 27:20.435
Two families, you've done exactly the same thing,

27:20.495 --> 27:24.115
but did get, married or a civil partner

27:24.295 --> 27:26.115
and their relationship then broke down.

27:26.375 --> 27:29.555
It, it just seems to me it gives a sort

27:29.555 --> 27:32.355
of perverse incentive not to marry

27:32.735 --> 27:34.395
to the person who has the assets.

27:35.205 --> 27:37.465
So I think there is a gender issue.

27:37.785 --> 27:39.665
I think there's a, a family law.

27:39.925 --> 27:42.625
What's the role of family law protection issue?

27:43.065 --> 27:45.465
I think the idea that everyone has a choice

27:45.525 --> 27:49.505
and you are making this choice autonomously is, is not

27:50.505 --> 27:51.555
typically the case.

27:52.295 --> 27:53.915
Um, I think it's true for some people

27:53.975 --> 27:55.675
and you should be able to opt out

27:55.895 --> 27:58.035
of any protective law that was brought in.

27:58.575 --> 28:01.115
But I think the people that tend to do that tend to be

28:01.565 --> 28:03.595
where both of them are wealthy perhaps,

28:03.735 --> 28:07.395
or maybe older couples who have been married,

28:07.495 --> 28:09.195
had their children and they're in their sort fifties,

28:09.195 --> 28:11.435
sixties and, and think, you know, the,

28:11.435 --> 28:12.915
the previous relationship breaking down

28:12.975 --> 28:16.715
or their former spouse or partner has died

28:16.935 --> 28:20.915
and they actually then want to just keep their own assets

28:21.135 --> 28:24.035
for the children of a, of, of a previous relationship.

28:24.035 --> 28:26.475
You know, there are good reasons why you would want opt out,

28:26.475 --> 28:30.555
but I would still say the majority, of fall into the,

28:31.135 --> 28:32.795
position where there are children,

28:33.325 --> 28:36.675
there is relationship, generated disadvantage,

28:37.375 --> 28:41.955
and that we need to really adjust to that situation.

28:41.975 --> 28:44.395
But with, with the opt out, I mean,

28:44.395 --> 28:46.435
I wouldn't impose it on any everybody,

28:46.935 --> 28:49.395
but I think those people who do want to opt out are,

28:49.415 --> 28:53.195
are those in a position to get legal advice, wouldn't be

28:53.615 --> 28:55.355
so prone to the common law marriage myth,

28:55.555 --> 28:58.475
although, it, it, or, or,

28:59.135 --> 29:01.875
but we would need a lot of public information to, to show

29:01.875 --> 29:04.635
that the law was changing, so that those

29:05.335 --> 29:07.435
who are correct in their view

29:07.435 --> 29:09.995
of the law at the moment understand that the law has changed

29:09.995 --> 29:11.675
and they would need to make a will

29:11.855 --> 29:15.075
or be very clear about opting out from that legislation.

29:15.175 --> 29:18.635
So I can see that, that, you know, there is going to be a,

29:18.915 --> 29:20.835
a transition period perhaps needed.

29:21.155 --> 29:24.315
I think people will need to be informed,

29:24.655 --> 29:25.795
but I think that's the way,

29:26.155 --> 29:29.355
I think there's justification from our search research

29:29.375 --> 29:31.235
to go in that, in that direction.

Family Law Protections for Non-Traditional Couples

00:00:00 - But in England and Wales, there's been a, a long running debate about the best way to provide family law protection to non-traditional couples, if I can put it like that. So same sex couples or couples who lived together without, being married originally were, were considered nontraditional. And, and many people, certainly before same sex couples became recognized in England and Wales thought that if people didn't marry,
00:00:35 - Yet family law is there to protect vulnerable members of family. Now, typically children, but also, spouses if there's economic disparity and often very gendered roles about who looks after the children and therefore can't work. And those who, who actually are the, the, so-called breadwinners and go out and do most of the earning, if not all of the earning. So originally people thought that, that,
00:01:04 - you should ignore Cohabitants. And so the form of the relationship, whether or not you were married in that heterosexual context was what counted. And if not, well that was just tough, essentially, if you didn't get, any remedies if the relationship broke down. So since then, there's been far greater recognition of same sex couples. We now have, same-sex marriage as, as well
00:01:36 - And then civil partnerships that were originally just same sex have also been extended to, heterosexual couples. So we call our situation now as having from a form-based point of view, equal marriage and equal civil partnerships. So e essentially everybody has, pretty much has the choice of going into a formalized relationship where the law offers family law protection.
00:02:09 - either well, when the relationship rates down or one partner dies, because that's when family law steps in and protects, if you like, from an economic point of view, that the weaker members of the family economically to give them certain rights and remedies. so that's where we are. the thing is that people are still living together without getting married or, civil partnering.
00:02:40 - England, Wales at 3.5 million couples who do that. And they have very little family law protection, if the relationship goes wrong. Yet the argument is they're doing the same exact same thing as civil partners or married couples, in that they tend to bring up their children. One, they divide the working and the caring very unequally often.

Rethinking Family Law: Function Over Form

00:03:09 - That's not just an assumption. And therefore, the the argument runs. You should look at the function rather than the form of a family. in order to decide when family law protection should apply far as couples go, there's no longer any difference between same sex and opposite sex couples. both can marry, both can civil partner, and they get the same protection. So unlike some other countries such as France, for example,
00:03:44 - the French pacs, where you agree to different rights than those as if you were married, both civil partnership and marriage have exactly the same rights in family law. and that essentially means that from a financial point of view, when the relationship breaks down, you share the, assets, the partnership or matrimonial assets, start off with an equal sharing
00:04:15 - to take account of the differing needs and the differing roles after the relationship's broken down in terms of caring for, for children, and or elderly relatives. In some situations, perhaps, perhaps, and your, your, you, you divide the assets on the basis of an established family law approach. if you just live together, then it's just a matter of property law. And that's actually not very flexible.
00:04:48 - and civil partnership context, relationship generated disadvantage whereby through having entered into the relationship and taken on a particular role within the relationship, you have lost out in terms of your own financial position. So, you know, typically people will give up work or just work part-time or take a particular job that is flexible around childcare. And that's most often women. Not always, of course.
00:05:21 - you can't just go back to where you were at the point when you entered the relationship. And in the married and civil partnership context, that is compensated for where there are sufficient assets in the cohabitation context that is totally irrelevant to how assets are divided. You just look at whether or not the property is owned, in a particular way, whether you made an agreement.
00:05:53 - because the Waco habitation often gets off the ground is one partner moves in to the other partner's property, and then people just don't do anything about changing the way the property is owned, and they perhaps spend the other partner's money on, on general household living or holidays or buying the washing machine or what, whatever it is. and yes, at the end of that relationship that you,

Legal Challenges for Cohabitants' Property Rights

00:06:23 - unless you can prove there was a, a, what they call a constructive trust that has a risen that indicates that, that, that you, you really had a common intention to share the property differently to the legal title, and you can prove that and acted on that basis. Now, that is very expensive lit litigation tends to go to the high court, it lasts for days.
00:06:54 - it depends on everybody getting all their receipts together and being able to demonstrate exactly what the sort of, intention was and trailing through emails, the accounts, those sorts of things to show who actually made contributions, how that was active, common intention to share it or not. And that's what cohabitants face, very often in this, jurisdiction and which is criticized
00:07:26 - the home is a, a, a, a shared asset, and it should be divided according to need. Or equally, if the partners are in a, in, in a clear, clear situation where they can afford to continue their lives with their own assets, their own earnings after the relationship rate stand. So that's the position on relationship breakdown on inheritance. If one of you dies. the situation in the married context is that
00:07:59 - and all the assets go to the spouse, typically, and unless the, the, the property is extremely valuable, and that even if you leave all your assets to the dog's home or something and your spouse is cut out of your will, your the spouse has the right to go and get what they would've got on divorce, to the court. And, and, again, that's a fairly well understood how assets should be divided in, in that way,
00:08:31 - In the cohabitation context, there has been some movement towards, a allow, well, there is a law now that allows a cohabitants who has lived in the same household with their, partner for at least two years to apply to the, the court for reasonable financial provision, but that is just limited to what they need for their maintenance. So it's far less generous than what a spouse would get in that
00:09:03 - So that's, that's, those are the main differences. There's also tax implications so that if even if a home is jointly owned, you're paying you, you pay tax on the transfer between the partners because you are not married or civil partnered, which you don't in, in that, in that other context. And so cohabitants lose out even though, and I think this is the trouble that socially

Cohabitation Rights versus Legal Misconceptions

00:09:32 - cohabitation is totally accepted, in, in, in terms of people not seeing any difference socially between those who are married and those who are living together. And the longer that relationship goes on, the more that is the case and people just conduct family lives in, in the same sorts of ways. Yet the law makes this very harsh distinction, or hard distinction, I should say, at the end. And, you know, maybe some people, and definitely some people are choosing that,
00:10:04 - whereas the, the other problem that we have is that we have something called the common law marriage myth, where people believe that they are protected and they have legal rights, and actually they don't. And that's the, the other issue about not taking a functional approach in England and Wales. common law marriage, which is like informal marriage, which under which you would rec be recognized as a spouse,
00:10:41 - And the, the phrase though is in the language and people think wrongly that when they've lived together, that they get the same rights as if they're married. And the law has confused this because in some situations you are treated as if you are married. so if you are in a rented tenancy rather than a property that you've bought, you, you may as a cabinet be able
00:11:09 - but it's quite complicated. It depends on which type of tenancy and how long you've lived together and things of that nature. And it's different lengths of time according to whether it's social housing or private rented housing, et cetera. So it, it, it's not straightforward, but people, so, so there, and in the social security context, if you are in receipt of means tested welfare benefits, if you live together, you are treated as if you are married. And so this myth, if you like, is fueled by some
00:11:43 - as if you are married, but at the, and that, that then leads people to think they're treated as if they're married or a civil partner in all situations. And that really isn't the case. And particularly at the end of a relationship or if somebody dies, and particularly as I say, when relationships break down, you, you, there's nothing you can do unless your partner agrees you cannot change your position.
00:12:13 - that you have contributed in a non-financial way to a relationship entitles you to a share of the, the, the matrimonial or civil partnership assets. so you are in a, in a very harsh situation, if you've believed yourself to be exactly the same as a married person, and you are the weaker economic partner, because you get, you get nothing,

Misconceptions on Cohabitation Rights and Protections

00:12:42 - You're not entitled to maintenance. What alimony as it is, it is called in the, in the states, you are not entitled to any automatic share of, yes, it's on the basis of your non-financial con contributions, unless, as I've explained, you are either a joint owner and, and you've made a declaration of how you want to hold the property, and or you then show there's a common intention to hold the property in a different way to the way the legal title, would,
00:13:13 - that we have undertaken. certainly the, the British Social Attitude Survey that amongst people with children, so children under 18, 55% of both cohabiting couples and married couples believe that cohabitants have exactly the same rights as married couples. And we've done longitudinal research since 2000,
00:13:49 - that belief, has changed over time and it has reduced a little bit. It started at at around 60% and it's gone down, in the general population to 47 or 8%, somewhere in just under 50% essentially. but it hasn't come down really radically and amongst those with children. So the, the, the population that is most affected
00:14:22 - that they have the same rights as the cohabitants have the same rights as if they're married. So it's not just wishful thinking among the, the cohabitation population. That myth is out there in the whole, of, of, of British society if you like. So people are, are reorganizing their lives on a, on a false basis. And there's this gap
00:14:51 - same way as if you are married. if you, if you go to hospital, your partner is, is considered to be the person that you can inform. you, you are treated if, if you are married. There are many situations when you come up against it, as I've already mentioned, the social security situation. If you are somebody in receipt of benefits, if, if you apply for car insurance, they often say, is there common law? are you a common law spouse?
00:15:21 - that reinforces this myth that people are treated the same. So then the question becomes, because at the end, when you are most effective, there's no route back for you to change things. Should the law step in and say, well, functionally you are behaving as if you are married. You haven't entered into a civil partnership, you haven't entered into a marriage. And there are lots of reasons why people don't do that. and, and these are not always

Addressing Misunderstandings in Family Law Rights

00:15:54 - So, therefore I think because there's such a lot of misunderstanding, I think the law needs to step in and address it in a cohesive way. As I've mentioned, in some context it does do that, but in other contexts it absolutely doesn't. And that's another problem. The inconsistency in different areas of law as to how these couples are treated, yet they believe, the majority of them that they are, going
00:16:22 - And that absolutely isn't the case. So yes, you can enter a civil partnership, yes, you can, marry, but other research that we've done, people often just don't get around to it. They're often comforted by the fact that they think they've got the same rights. They may, they may be a bit superstitious about marrying or civil partnering, for one reason or another. But that sort of begs the question of whether
00:16:55 - or very little reward for all the non, financial contribution you are making to a relationship and just be expected to go off and, completely start again from scratch. Even though that relationship has generated disadvantage to one of the spouses unevenly between the couple, and the other person keeps all their assets intact, and the cohabiting gets nothing. Obviously child support would have to be paid,
00:17:27 - afford the rent and those sorts of things, we do have some welfare benefits that can step in, but often people, fall very far financially at the end of a relationship, be because, there is no equivalent of trying to, at least give some assets that, that are relative to the standard of living. The family enjoyed before the relationship broke down, which is again,
00:17:57 - and civil partnership situation where that the, the, the standard of living of the family before breakdown is taken into account. The, the, the Ministry of Justice here, it has run a campaign. The law commission made recommendations actually to say that the law should be changed. There was an awful lot of publicity. There's a lot of articles in newspapers and on media. there are websites by, for example, an agency called Advice Now,
00:18:29 - but often people don't know until it's too late what they should do. And people don't take a lot of notice of things. I think, you know, this is a human, well, a people, there's an optimism pie. People don't think their relationship is the one that's going to break down. And two people don't really focus on the law until the relationship is in trouble. And because agreement is really the only way out of it,

Cohabitation Challenges and Legal Protections

00:18:59 - to civil partner agreement to make a cohabitation agreement about the assets at that point, it's very difficult to do that because your partner and you are thinking in very different situations. Yet in a sense, the damage has been done. You know, you've, you've got children, you've reduced your earning power, you've maybe moved around the world or the country in order to support your partner without being, married. And your financial situation can't be redressed unless they agree.
00:19:32 - it's appropriate to rebalance things, a at the end of the relationship. And the, the irony with marriage, the other irony with marriage is it is only when things go wrong. We have separate property during marriage in, in our jurisdiction, and it is only when things go wrong that the assets are redistributed to the couple, between the couple. so it,
00:20:01 - the the separate property rule does, continue. And so you really are just down to property law and who owns what. There's no understanding that that sort of family law protection, if you like, that is given on relationship breakdown in when formalized relationships breakdown. And, and the question becomes, well, should that be the case? Because actually it's the children's standard of living, which in fact is reduced if they stay with the parent
00:20:35 - and is the one who's really strapped for cash and can't afford the rent or hasn't got enough, income to be able to obtain a mortgage and, and purchase a property or an apartment or whatever. It, it's very, it, it, it, it's very uneven. And the other issue with cohabitation is that the power in a relationship, it can be uneven. You know, one may know what the law actually is yet pretend to the other. And this has come up in our research as well,
00:21:10 - to marry, we are a modern couple. We are equal. Why should we go for these old style relationships and, and essentially make excuses? And what they're really saying is, I don't want you to get your hands on my assets, but I do want you to look after my children for, for nothing. And if it goes wrong, to walk away, without any claim on the property. So that's, that's the other problem. And in abusive relationships, it makes it very difficult
00:21:39 - to leave an abusive relationship if they're going to have no financial, settlement or remedies when the relationship breaks down. And then of course, if somebody dies on top of the, the grief that one experiences, when the relationship hasn't broken down in those sorts of situations, you are ending, you are ending up with having to go to court, having to, to, in order to establish that you are a inhabitant and are eligible for some sort of financial support, limited

Need for Legal Protection for Cohabitants

00:22:11 - and a a as well as pay inheritance tax if the property is owned, because you weren't married. And people just don't know that until it's too late. So there's no route back. And I think a safety net that meets people's needs at the very minimum, and particularly where there are children really should be, introduced so that people are not, faced with this shock, if you like, an unpleasant shock
00:22:45 - and misleading the other and having no easy redress for that. I mean, there, there, there have been some changes around bereavement damages. so you can make a claim if it's somebody else's fault that your, your partner died an accident at work or road traffic. Cohabitants now can claim bereavement damages and some pensions may, but it depends on the terms of the pensions, extend
00:23:15 - But it's not always the case, and it's certainly not the case with the state pension, where somebody has contributed. You are not entitled unless you're espoused to a benefit from their or a civil partner to benefit from the contributions made by the other, partner. We have thought long and hard about the, the, the way forward. I think that, I think because of the,
00:23:50 - a, a matter of, of, of, of gender discrimination, actually, I mean, not direct, but indirectly because people think, you know what, if you think, well, what is a good mother? it's a mother who looks after their children, you know, what is a good father? Well, yeah, they look after the children, not that it's the mother, it's still the primary carer role is identified more with mothers. And I think because mothers feel that, plus
00:24:20 - women on average, less than men, significantly less than men. And so who, if you are making a financial decision, as a married couple or a a a civil partner couple, or a cohabiting couple, who is the one that decreases their work, either gives up completely or goes part-time, it's typically the partner with the lower income. That's typically the the mother. if you are talking about the, the childcare situation. And so you are more likely to suffer
00:24:53 - because you are not keeping up your earning capacity, your contact with the labor market and your, your ability to, to accumulate assets if you like. you are devoting yourself to childcare, which you could say is priceless. I mean, what price do you put on that role? and if that's evenly shared, well, fair enough, you are not suffering economic disadvantage in that same way. But it seems to fall on women much more that they do

Gender Roles and Cohabitation in Family Law

00:25:24 - of what expectations of mothers, are and that they tend to sort of flex their work around the children much more work locally, want to perhaps spend more time with their children more than the fathers. I, I, I totally appreciate that it's changing, but it's not changing really, really fast to the point or so the statistical evidence shows us to the point that, that it's the, the booties are on the other foot,
00:25:54 - that you should share these things equally, actually quite the reverse in terms of the attitudinal work. Certainly in this country, most people, the vast majority of people think the best family form is father working full-time, mother working part-time around the children or, or to give up work. If you had those two together, you, you are pretty much, 80 90% of the country. So it's still very gendered. So I think therefore it's important that the law provides a safety net
00:26:25 - and make sure that that poverty is not the outcome for people who often had no ch choice, because it takes two to marry, it takes two to agree to civil partner. You can't just do it on your own and protect yourself. That the meaning of your autonomy in The family context is, is actually much reduced. It, it means you both have to agree and maybe, you know, in the old days everybody got engaged, they got married and then they had their children. That's not the way we partner
00:26:56 - It, we do these things over time. The order you do them, there is, and it's a 85% of couples live together before they get married or civil partner. It's very, very, very high. So actually, if you then continue that relationship for a long period of time, why are you in such a different position? Two families, you've done exactly the same thing, but did get, married or a civil partner and their relationship then broke down.
00:27:29 - of perverse incentive not to marry to the person who has the assets. So I think there is a gender issue. I think there's a, a family law. What's the role of family law protection issue? I think the idea that everyone has a choice and you are making this choice autonomously is, is not typically the case. I think it's true for some people and you should be able to opt out of any protective law that was brought in.
00:28:01 - where both of them are wealthy perhaps, or maybe older couples who have been married, had their children and they're in their sort fifties, sixties and, and think, you know, the, the previous relationship breaking down or their former spouse or partner has died and they actually then want to just keep their own assets for the children of a, of, of a previous relationship. You know, there are good reasons why you would want opt out, but I would still say the majority, of fall into the,

Addressing Relationship-Generated Disadvantage in Law

00:28:33 - there is relationship, generated disadvantage, and that we need to really adjust to that situation. But with, with the opt out, I mean, I wouldn't impose it on any everybody, but I think those people who do want to opt out are, are those in a position to get legal advice, wouldn't be so prone to the common law marriage myth, although, it, it, or, or, but we would need a lot of public information to, to show
00:29:29 - who are correct in their view of the law at the moment understand that the law has changed and they would need to make a will or be very clear about opting out from that legislation. So I can see that, that, you know, there is going to be a, a transition period perhaps needed. I think people will need to be informed, but I think that's the way, I think there's justification from our search research to go in that, in that direction.

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