Ruth Deech's article opposing cohabitation law reform overlooks the reality faced by 3.5 million cohabiting couples in the UK who are not married, according to a letter from Jo Edwards, chair of the family law reform committee at Resolution. While Deech argues that couples who choose not to marry should not acquire legal rights automatically, the current system of no rights leaves too many vulnerable people, particularly women and children, without meaningful protection when a relationship ends or a partner dies. Many still mistakenly believe in the myth of 'common law marriage'. The proposals aim to strike a balance between respecting autonomy and protecting vulnerable people.
Law must reflect modern life
Edwards writes that the law must reflect modern life. Many couples raise children, share finances and build lives together without marrying, sometimes for cultural, personal or financial reasons, and often because one person doesn't want to marry. That should not mean that the financially weaker party is left facing hardship.
Reform is also essential for victims of domestic abuse. Many remain trapped because they simply cannot afford to leave an abusive relationship without any legal or financial safety net. A clear legal framework should provide greater certainty and fairness while remaining straightforward enough for people to navigate. An important aspect of the proposals is the ability to opt out of the suggested legal framework.
International examples and opportunity
Other countries, such as Australia and New Zealand, have introduced sensible protections for cohabiting couples without undermining marriage or having the catastrophic consequences opponents predict. The consultation offers a once-in-a-generation opportunity to modernise family law and create a fairer system of rights and responsibilities. This is a pivotal moment for family law reform and one that professional organisations such as Resolution have campaigned for for decades. It is an opportunity that the government is right to seize.
Opposing view: resist reform
Rosemary Auchmuty, professor of law emerita at the University of Reading, argues that cohabitation law reform should be resisted. It is premised on a patronising and outmoded model, according to which a dependent partner (assumed to be a woman), finds that, when discarded by a much wealthier partner (assumed to be a man), she does not enjoy the same 'protection' of the law as married people. But cohabitants choose not to marry for many different reasons; they are not always ignorant of the law and may be rightly suspicious of just how protective court-sanctioned divorce-like settlements will be.
Those with property will have ensured that they co-own their home (mortgagees insist on it) and those with access to pensions will have built up their own. This means that at the end of a relationship, they will not be left penniless, but will enjoy rights independent of their partner, which the law cannot touch. If the law steps in to regulate cohabitation, those careful financial arrangements will be up for grabs, often by less-than-deserving men claiming a share of their former partner's assets.
Some years ago when Auchmuty interviewed people who had dissolved their civil partnerships, many were furious to discover that on dissolution of a civil partnership, as on divorce, their previously agreed financial arrangements could be overturned by a court impressed by a former partner's apparent 'dependency'. This is what cohabitation law reform will do.
It is always better to have one's own assets than to rely on a partner who, statistics show, may not always be there, or always solvent, and better to have one's independent rights than to look to the courts for a remedy that history shows is rarely generous to women.
