With a new Government in place, albeit one preoccupied with Brexit and unforeseen tragic events, is now the time to put more emphasis on equality in family law? We have marriage and civil partnerships for same sex couples, but what about the rights of cohabiting couples, and the rights of heterosexual couples to have a civil partnership instead of getting married?
The Civil Partnership Act of 2004 changed the way same sex couples could legally mark their relationship by allowing Civil Partnerships to be formed. A civil partnership is not quite the same as marriage but it does afford the couple similar legal rights and obligations as their married counter-parts, and it certainly gives more legal protection than those couples who choose simply to cohabit. If a civil partnership breaks down then the couple must apply to dissolve their relationship, in a similar way to how a married couple get divorced. The family court also has the power to make financial orders to ensure each party is financially supported after dissolution of the partnership.
In 2014 the law moved forward again, making it legally possible for same sex couples to also choose marriage. Whilst this is a huge step forward for the gay community it does leave heterosexual couples with a more limited choice of cohabitation (with no legal rights or obligations to support each other in separation or following death) or marriage. Many activists are now trying to lobby parliament to update the law for heterosexual couples so they too can choose cohabitation, a civil partnership or to marry in the more traditional sense.
Civil partnerships for straight couples needed
For all sorts of reasons, some couples do not want to get married and a civil partnership would be their preferred choice but at present many are left simply cohabitating in what is commonly known as a “common law marriage”. Unfortunately, a common law marriage has no legal framework and is just an urban myth. Cohabitation offers no legal protection in the event of separation or when one party dies. This can have drastic effects.
If the relationship breaks down neither party can claim financial support from the other (except child maintenance) even if they have no income or job prospects of their own. They have no automatic entitlement to a share of any property or assets that are not held in joint names even if, for example, they have contributed towards payment of the mortgage and bills for many years. They may have financial claims to make in order to support and house any children, under the Children Act 1989, but not specifically for themselves.
Equally, if one partner dies it leaves the other in a very difficult financial situation. The surviving partner must pay inheritance tax on any money left to them which married couples are often exempt from paying. In addition there is no entitlement to bereavement benefits, state pensions or private pensions (unless they had a specific arrangement in place). Unmarried couples also do not enjoy the government’s tax breaks which married couples and civil partners may receive.
It is hoped the new government will now seriously review this area of family law and ensure the same options are available for all whether they are straight, gay or bisexual. In my view, and based on my many years of experience as a family lawyer I think everyone should have the same choice about how to formalise and legally protect their relationship whether that is cohabitation, a civil partnership or marriage.
Abby Smith
Divorce & family lawyer, St Neots
