Cohabitation, civil partnership or marriage - the choice is yours?


Date: 18 July 2018

Two people getting married

In a recent Supreme Court case, a heterosexual couple wanted to formalise their relationship, but felt strongly that marriage, with what they regarded as its history of discrimination against women, did not reflect their commitment to be equal partners.

Instead they wanted to enter into a civil partnership - an option which is currently only available to same-sex couples. The couple challenged this, claiming that their lack of choice between marriage and civil partnership amounted to unequal treatment.

The five judges unanimously decided that the current restrictions are not compatible with human rights law. However, it is not yet clear when action will be taken to open civil partnerships to heterosexual couples.

So, what are the current options for couples who do not consider marriage appropriate?

Civil partnership explained

The option of civil partnership was introduced by the Civil Partnership Act 2004, which enables same-sex couples to enter into a legally-recognised partnership effectively providing the same rights, responsibilities and benefits as a married couple. On the breakdown of the civil partnership, there is a procedure very similar to divorce, including how the court will determine financial and property claims.

Same-sex couples were later provided with the additional option of getting married, with the Marriage (Same Sex Couples) Act 2013.

However, there was no quid pro quo that a heterosexual couple could opt for a civil partnership rather than a marriage. The government decided to delay any decision on the future of civil partnerships.

This "wait and see" approach meant that the couple in the recent Supreme Court case found themselves with only one option to have their relationship legally recognised, namely marriage.

What about cohabitation?

The option of simply cohabiting, with no legal recognition, did not fulfil what this couple wanted either. It comes with the inherent problem that, contrary to what you might expect, there is no such thing as a common law marriage.

With regard to property, without a detailed cohabitation agreement and clear information on the property deeds one of the couple can easily be left financially high and dry on the breakdown of the relationship. Property claims involve complex trust law and a variety of statutes, and usually end up in a costly court case.

Where children are involved, as in this case, the court can at least make orders to ensure that the children’s housing and financial needs are met on the breakdown of the relationship. However, there remains great uncertainty and the possibility of considerable unfairness for separating cohabiting couples.

A note on pre and post-nuptial agreements

Whether in a marriage or a civil partnership, it is worth mentioning that, when it comes to the breakdown of a relationship, it is the courts (not the couple) that ultimately decide how financial and property claims should be dealt with.

The couple can of course try to resolve their issues through mediation and other non-court options, but, ultimately, the court has the final say even where the couple have come to an agreement.

Pre and post-nuptial agreements are increasingly being used by couples to try to have some control on how financial matters will be dealt with on the breakdown of a marriage or civil partnership, but even so the court can overrule that agreement if it considers it to be unfair to one of the couple.

What the future holds

In concluding that the present restriction of a civil partnership to same-sex couples is incompatible with human rights law, the Supreme Court has given the government a "bloody nose". However, it will have to be seen how quickly any change in the law will actually take place.

Sadly, for the couple on question, having won in the highest court in the land, they will not be able to send out the invites to their civil partnership just yet.

Julian Waldon is an associate in the family division at law firm Hart Brown.

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