Recent years have demonstrated a much greater social shift towards couples choosing to live together in different types of modern family make up. This includes same-sex couples choosing to enter into civil partnerships over marriage and cohabiting couples; the fastest growing type of household in the UK. But is the law keeping up with modern family life or is urgent statutory reform needed?
Civil partnership was first introduced into English law by The Civil Partnership Act 2004, which enabled same sex couples in England and Wales to obtain legal recognition of their relationship by registering as civil partners to each other. Some 10 years later, on 29 March 2014, The Marriage (Same Sex Couples) Act was introduced enabling same sex couples in England and Wales to enter into a marriage. At present the legislation does not permit a heterosexual couple to opt for civil partnership over marriage as The Civil Partnership Act only applies to same sex couples.
Last week the Office for National Statistics released 2016 data for civil partnerships in England and Wales. For the first time since announcement in 2013 of the introduction of marriages for same sex couples, figures show an increase in the formation of civil partnerships: there were 890 civil partnerships formed in 2016, representing a 3.4% increase compared with 2015 figures. Furthermore, as more same sex couples in England and Wales chose civil partnership in 2016 than in the previous year, the statistics also show a rise of 8.4% in civil partnership dissolutions.
A couple’s reasons for preferring a civil partnership or a cohabiting relationship over a marriage will vary but the differing implications for them on relationship breakdown are significant.
For some couples the choice not to marry is driven by the religious element associated with the constitution of marriage even though marriages need not now be a religious ceremony, but whatever the reason, one thing is very clear: the make-up of modern families today is very different and the law needs to catch up.
In October 2016 a heterosexual couple from London became the first in the UK to enter a civil partnership, but they had to make use of new laws in the Isle of Man to do this. The inability of heterosexual couples in England and Wales to enter into a civil partnership is now to be reviewed by the Supreme Court following the Court of Appeal’s rejection earlier this year of a heterosexual couples claim. The couple in this case state that they want to secure legal recognition of their long standing relationship under the Civil Partnership Act because they object to the ‘patriarchal baggage’ of marriage and they argue that the Act is ‘incompatible with equality law’.
In the case of couples who choose to co-habit rather than marry, current legislation simply fails to provide adequate legal protection. Cohabiting couples do not appreciate just how vulnerable they are in cohabitation should their relationship breakdown. Contrary to popular belief, there is no ‘common law spouse’ protection and cohabiting couples in most circumstances do not have any legal entitlement in their own right to share in the assets, pension or income of their partner in the event that their relationship ends. This is not the case for those couples who do opt for civil partnership or marriage.
Undoubtedly, there is a pressing need for urgent reform of the law relating to cohabiting couples. Individuals in this type of modern family arrangement need basic rights to protect them and their children on relationship breakdown. As for the most recent statistics on civil partnership, it is perhaps too early to fully evaluate the impact of the introduction of marriage for same-sex couples on civil partnerships, but the figures will be of significant interest to policy-makers and to those following the on-going debate about extending civil partnerships to heterosexual couples.