Second Report - The rights of cohabiting partners

The current law applicable to cohabitants on relationship breakdown can be costly, complicated and unfair. Complex property law and trusts principles often require the financially weaker partner—often women—to demonstrate direct financial contributions to the acquisition of the family home, while childcare and other non- financial contributions go largely unrecognised. Schedule 1 to the Children Act 1989, is out-dated, mostly benefits the children of wealthy parents and is in need of reform.

It is staggering that so many people in England and Wales believe in the common law marriage myth. This misplaced belief in legal protections can have profound consequences for cohabiting partners—many of whom do not realise the reality of their situation until it is too late. The Government should conduct a public awareness campaign to highlight the legal distinctions between getting married, forming a civil partnership, or choosing to live together as cohabiting partners. (Paragraph 24) Equalities issues

The lack of comprehensive legal protections for cohabitants upon relationship breakdown means that women, especially women from ethnic minority backgrounds and those who have had a religious-only marriage, can suffer relationship-generated disadvantage. The Law Commission’s proposals for weddings law reform, although welcome, primarily focus on resolving issues around formalised relationships and the validity of marriage ceremonies. Women who feel pressured into a religious- only marriage, other non-legally recognised weddings, or remaining as cohabitants without a formal agreement will remain unprotected by the current law. The Government should undertake a targeted information campaign aimed at women in religious communities where religious-only marriages are commonplace, highlighting the risks of not having a ceremony which meets legal formalities. Such a campaign will need to consider the Law Commission’s recommendations for weddings law reform. (Paragraph 32) Key features applicable upon relationship breakdown

The law should fully recognise the social reality of modern families and protect people regardless of whether they are married, in a civil partnership, or in long- term cohabiting relationships. However, law reform should recognise that marriage continues to hold an important social and religious status in England and Wales. We believe that the Law Commission’s 2007 proposals for an opt-out cohabitation scheme are a pragmatic approach for reforming cohabitation law. The Law Commission’s proposed approach has the potential to: • protect eligible cohabitants who are economically vulnerable • preserve individual autonomy; The rights of cohabiting partners 27 • maintain a distinction with marriage and civil partnership; and • provide certainty about who qualifies as a cohabitant.

The Government should reform family law to better protect cohabiting couples and their children from financial hardship in the event of separation. We recommend an opt-out cohabitation scheme as proposed by the Law Commission in its 2007 report on the financial consequences of relationship breakdown. The Government should make a commitment to publishing draft legislation for pre-legislative scrutiny in the 2023–24 Session of Parliament. In the meantime, the Ministry of Justice should commission a refresh review of the Law Commission’s 2007 proposals to see if they need updating. (Paragraph 64) Death of a partner

People need certainty following the loss of a partner. We support the Law Commission’s 2011 recommendations concerning intestacy and family provision claims for cohabitants. We are concerned that many cohabitants rely on trustee’ discretion to access their deceased partner’s pension, often after being asked to supply disproportionate amounts of evidence compared to married or civil partnered claimants. Like spouses and civil partners, cohabitants should be able to inherit the family home without fear they will have to sell it to pay an inheritance tax bill. The Government should immediately: a) implement the Law Commission’s 2011 recommendations concerning intestacy and family provision claims for cohabiting partners; b) publish clear guidelines on how pension schemes should treat surviving cohabiting partners, including what those partners are entitled to, and what evidence they will need to access survivor’s pensions; and c) review the inheritance tax regime so it is the same for cohabiting partners as it currently is for married couples and civil partners. (Paragraph 73) 28 The rights of cohabiting partners