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Marriage, civil partnerships and cohabitation

10/07/2018

As the law currently stands, when a relationship ends or one partner dies, the rights of those who are married or who are in a civil partnership are different from those who are cohabiting. Whilst the term “common law husband/wife” can still be heard regularly in day to day life, there has never been any legal weight to that term at all.

In 2004 the focus on same sex cohabiting partners, who did not have the option of marriage available to them led to the Civil Partnership Act. In many way this gave same sex partners equivalent rights to those of married partners, provided they went through the Civil Partnership process.

The Civil Partnership Act only applies to same sex partners. That Act was very much about discrimination on the basis of gender orientation. It was not about cohabitation. The Marriage (Same Sex Couples) Act 2013 extended the basic concept of marriage to same sex partners. Again this was about discrimination against same sex couples not about cohabitation generally. Opposite sex partners have always had the ability to choose. Same sex couples did not until those the 2004 and 2013 Acts were passed.

Since marriage was extended to same sex couples, the increasing calls to extend civil partnership to opposite sex couples have now come to a head. The fact that same sex partners now have two options to have certain financial rights on separation or death – marriage or civil partnership – means that the discrimination is now against opposite sex partners who only have one option if they want those rights– marriage.

Karen Steinfeld and Charles Keidan took a case to the Supreme Court essentially on the basis of that discrimination. Judgment was handed down on 27 June 2018.

The Supreme Court has said that restricting civil partnerships to same sex couples only is incompatible with European Convention human rights.

However, it is important to appreciate that this does not mean that opposite sex couples can now enter into civil partnerships. There would have to be a change to the current law before they can do so. Nor does it mean an extension of certain rights to cohabiting couples generally.

So the legal advice remains as it did before. If you are not married or in a civil partnership, you do not have the same rights as those couples. A cohabitation agreement is still something to consider as a way of helping to regulate what you both want to happen when your relationship ends. Making sure you take advice before you buy property together, that you have up to date wills and checking with pension providers what arrangements could or could not be made is still really important for cohabitees.

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