What are the advantages and disadvantages to the individuals concerned and to society more widely of granting legal recognition to the status of cohabitation? How should the law define cohabitation? In our presentation we are going to take a look at the concept of cohabitation and its advantages and disadvantages in case of legal recognition. Cohabitation is also known as the common law marriage but in the contrary of popular beliefs, cohabitants don’t automatically get the same rights as married couples do. For same-sex couples it is possible to register a civil partnership agreement which grants protection, this type of contract however isn’t possible for a hetero couple. Cohabitants can enter into a cohabitation agreement where they state their desire what would happen if the relationship ends.
The problem with these agreements is that they are not yet addressed in court and the outcome is therefore not certain. The most obvious advantage for the individual are the costs, cohabitation doesn’t cost anything. The opportunity of living together without any legal consequences if the relationship fails can also be considered as both an advantage as a disadvantage. For the individual the legal recognition would be a solution for many of the problems which arise in case of separation or the death of a cohabitant. Problem areas:
Proprietary claims now have to be resolved using complex remedies, and there are many problems involving the participation of ownership when there is no legal document constructed which deals with the ending of the relationship. The courts may only make orders based on a determination of shares which have been acquired in the property in circumstances where the legal rules of trusts or proprietary estoppel apply. The courts view only the financial data, and not if a woman or man stays at home for 30 years and takes care of the household and puts away their career. There is however a significant development as seen in the case Jones V Kernott1. For now the court has no power to make any orders for maintenance or the ongoing financial support for the ex-partner.
When there would be a legal recognition this would give a legal base to grant the courts power in this cases. But we don’t have to forget that every advantage has a disadvantage, there are couples who live together just for the reasons I have just discussed. As long as there is no automatically recognition there won’t be a problem as couples can still choose for their independence (financial and otherwise) Unmarried partners have no automatic inheritance rights over their partner’s assets on death. In some circumstances, a surviving cohabitant may be able to make a claim, under family provision legislation, against the estate of their partner on his or her death, but in general a cohabitant is treated different as a spous. Income Support and income-based Jobseeker’s Allowance recognise that married couples, and civil partners, have a duty to maintain each other. This however does not apply for regular cohabitants. The system of contributory benefits does not recognise unmarried couples, or same-sex couples not in a civil partnership.
So, for example, unmarried partners and same-sex couples who have not registered a civil partnership would not be entitled to Bereavement Benefits. In the case of taxation, the cohabitants are treated individually. This can be an advantage for some and a disadvantage for others, it will depend on their personal situation. In order of state retirement pensions a cohabitant cannot rely upon their former partner’s contributions, whereas a spous or a civil partner can do so. For a Pension Credit, if two people are treated as a couple, the resources of both are added together and may be taken into account in assessing entitlement. Two cohabitants are treated as a couple if they are considered to live together and share their lives in the same way as if they were married or civil partners. For occupational and personal pensions, a cohabitant whose partner has died may be entitled to benefits from their pension scheme. This will depend on the type of pension arrangement.
When a cohabitant wants to stay with his or hers partner in the UK, they have the same rights as a married couple if they were living together for a duration of 2 years. The list of persons eligible to register a death does not automatically include a surviving cohabitant. If the parents were married to each other at the time of the birth or conception, either the mother or father can register the birth on their own and details of both parents will be recorded. The law assumes that the mother’s husband is her child’s father this is also the case in Belgian family law. If the parents are not married to one another, generally the father’s details may be recorded only if both parents (or the court) acknowledge the father’s paternity. Different possibilities to register the father:
Both the parents go to the register office and sign the birth register together. the mother declares to the register office that the cohabitant is the father of the child and she shows a statutory declaration made by the father acknowledging his paternity. The father declares to the register office that he is the father of the child and shows a statutory declaration made by the mother acknowledging the father’s paternity. At the request of either parent, on production to the registrar by either parent of a parental responsibility agreement or an appropriate court order. If the father’s details are not included in the birth register, it may be possible to re-register at a later date. Registration of an unmarried father on the child’s birth certificate has relevance for parental responsibility, which can lead to child support and also gives more possibilities in proprietary claims. What are the advantages and disadvantages to society of granting legal recognition to the status of cohabitation?
Before we can discuss the advantages and disadvantages of cohabitation to society, we need to acknowledge that society nowadays has 2 major forms of (long during) partnerships: i.e. marriage and cohabitation.
A study in Scotland shows that more people now live together without being married2. Also, many more children are born to parents who are not married (about half in 2008) than in the past. In 2006, about one quarter of unmarried adults aged 16 to 59 were cohabiting and, in 2008, there were about 370 000 cohabiting adults in Scotland. Cohabitation is more prevalent amongst younger age groups, with 57% of all cohabitants aged 34 or less and 81% aged 44 or less.
The biggest difference from a social point of view – between married partners and cohabitated partners is in the (lack of) legal obligation to support each other. If you live together you have no legal responsibility to support each other, while you are living together or after you’ve split up. However, when married there is a legal obligation to support each other. Support of the (ex-)partner is a consequence that effects the entire society. When families, whether they are married or cohabitating, are in a financial distress situation, they inevitably depend on the society, and its welfare organizations to come to the rescue. When not having a legal obligation to help your (ex)partner and when the absence of a legal obligation goes side by side with the absence of a moral obligation, eventually society will pay the price.
After the relationship
Unlike the regulations as stipulated by law in marriage, if you split up, you will not be entitled to receive half your partner’s property or maintenance payments. The factual circumstances (number of years living together, giving up your job to look after the family,…) are irrelevant by law.
Not being married makes however no difference when it comes to the financial responsibility for children. You must always pay child support for your biological children, or any child that you have formally adopted or recognized. However, you are not obliged to pay child support for your partner’s children from previous relationships. As you can see are the differences between marriage and cohabitation only in the relationship between the partners, or parents and not between the children and their parents.
When cohabitating you have no responsibility for your partner’s debts. This might seem like an advantage to the individual, however from society’s point of view this can be interpreted as a giant threat, as the insolvable individuals will often rely on (society’s) financial safety net. Cohabitating partners are only responsible for debts in their name. However if the loan or credit agreement is in both names, then both are responsible for complying to the terms of the contract.
Inheritance is particularly a problem for cohabiting partners, especially if they own their own home. Couples that live together, unlike married couples or civil partners, potentially have to pay tax on anything that they inherit from each other and cannot use each other’s inheritance tax allowance3. This means they are also more likely to pay tax on anything they leave to other people, such as their children or family members. It is clear to say that the advantages and disadvantages of cohabitation are mostly similar for both individuals as for society. For instance lower taxes can be an advantage for the individual, but means a lower ‘income for society’ and therefore reflects through fewer governmental means for the (individual) citizens.
Social differences between cohabiting and married couples
Many of the differences between cohabiting and married partners are due to their age differences. Compared with married partners cohabitants: receive more income from social benefits (welfare);
have lower incomes;
are less likely to be home owners;
are more likely to be tenants;
are less likely to have children, and if they do have children, have smaller family sizes.
There is a vigorous debate about the – alleged – benefits of marriage that has focused on whether formal marriage is a better environment for children than parental cohabitation.
A second study4 shows that the children of married parents do better than the children of cohabiting parents, particularly on measures of social and emotional development at the ages of 3 and 5.
The same study however also shows that married parents differ from those who are cohabiting in very substantial ways, particularly relating to their:
education and socio-economic status;
and their history of relationship stability and the quality of their relationship.
Once we take these factors are taken into consideration, there are no longer any – substantial – statistically significant differences in the outcomes between children of cohabiting parents and those of married parents.
What is the significance of these findings?
The mentioned study cannot decisively conclude whether a causal link exists, or a so called “marriage effect”. However it does observe that much of the gap in educational, social and emotional outcomes between the children married parents and cohabiting parents appears to more likely be due to differential selection into marriage compared with cohabitation, largely on the basis of parental education and socio-economic status.
Many of the remaining differences in social and emotional outcomes are more likely to be due to the differences in the quality of the relationship between parents who cohabiting and between parents who are married at the moment their child is born. Different studies indicate however that it is debatable whether this also reflects selection into marriage, or if it reflects a possible benefit of marriage itself.
To be able to determine if an actual causal link really exists, it is needed to be shown that marriage (or cohabiting) leads to large improvements in parents’ characteristics, by the time the child is 9 months old, which in turn lead to substantial social and emotional results for children in general. This seems however unlikely in the case of parental education and socio-economic status. It is debatable whether the quality of the relationship is what causes marriage or whether being married itself improves quality of the relationship (with both the partner, or with the children).
How should the law define cohabitation?
The term “cohabitation” can range from a group of students living together in a flat-share, to a boyfriend and girlfriend living together while contemplating marriage, to a couple who have deliberately decided to avoid marriage but wish to live together in a permanent stable relationship.5 In the dictionary cohabitation is explained as “to live together in a sexual relationship, especially when not legally married” But there is no legal definition of cohabitation in the UK law. There have been some attempts, in December 2008, the cohabitation bill was introduced in the House of Lords as a Private Member’s Bill by the liberal Democrat Peer, but it did not progress any further. There was a second attempt in 2009 by Mary Creagh, who sought leave, under the Ten minute Rule motion, to introduce the Cohabitation Rule. But the bill did not make any further progress. 6 In the absence of family law provision, parties are left to use the general law of property contract, and trusts to ascertain their legal position. 7 There are some statutory attempts at defining cohabitation:
Section 144 (4) (b) of the Adoption and Children Act 2002 states that ‘Two people (whether of different sexes or the same sex) living as partners in an enduring family relationship’ can adopt. A more common form of definition of cohabitation is found in the Family Law Act 1996: ‘two persons who, although not married to each other, are living together as husband and wife or (if of the same sex) in an equivalent relationship’8 Jan Trost, one of the first to investigate cohabitation, defines it as “living together under marriage-like conditions but without a marriage”.
The law has not yet provided a coherent approach to cohabitation, but in several statutes married and unmarried couples have been treated in the same way.10 For example in the Domestic Violence and Matrimonial Proceedings Act of 1976 that gave those who lived together as husband and wife the same protection from domestic violence as married couples. 11 Apart from these special provisions, the law treats unmarried couples as two separate individuals, without regard to their relationship. If there is no specific statutory provision then the law treats an unmarried couple in the same way as it would two strangers. 12 In my opinion the law should define cohabitation as, two people that live in the same house, with the intention to do so for a long period, as if they were married, without any of the legal rights that we know in marriage and civil partnership.