Does the extension of civil partnerships threaten cohabitation reform?

The recent news that the Government is extending civil partnerships to opposite-sex couples was greeted with near universal approval, particularly amongst family lawyers. However, I have seen some, including at least one very highly regarded family lawyer, express the concern that the news might threaten an even more important family law reform: the introduction of basic property rights for cohabiting couples. But does the extension of civil partnerships really make cohabitation reform less likely?

I must admit that when I first saw this suggested I couldn’t see the connection between the two things. What has the extension of civil partnerships to heterosexual couples got to do with giving property rights to cohabiting couples?

But then I realised that perhaps I wasn’t thinking as deeply as my more highly esteemed colleague.

As the Prime Minister Theresa May said when she announced that civil partnerships would be extended to opposite-sex couples, that reform was all about giving people choices. Heterosexual couples would now be able to choose whether to marry or enter into a civil partnership.

Well of course cohabiting without entering into any formal relationship construct is also a choice, even if it is often made by default, without making a conscious decision.

Could it be that in the minds of those in power, and those capable of influencing those in power, a choice between marriage and civil partnership is enough for couples entering into a relationship? Do they perhaps see civil partnership as a ‘lesser’ type of relationship, that perhaps will be attractive to those who up to now have simply cohabited? After all, the thinking may go, if cohabiting couples want the protection of property rights should their relationship break down, they can always enter into a civil partnership, without having to get married.

There may, I suppose, be some merit in such an argument, as there may well of course be some cohabiting couples who object to marriage but will not object to entering into a civil partnership, just as Rebecca Steinfeld and Charles Keidan do. Maybe civil partnerships for all will reduce the number of couples cohabiting.

But of course many will view civil partnership as really marriage in all but name. It may not be marriage that they object to, but rather any form of state control over their relationship. Those couples will be no more attracted to civil partnership than to marriage.

And then there will be a large number of cohabiting couples who simply don’t want to commit to a formal relationship, or just never make the decision whether or not to commit.

In short, the introduction of civil partnerships for all may reduce the number of couples who ‘just’ cohabit, but I doubt that the reduction will be very significant. And even if it is, there will still be huge numbers of cohabiting couples.

And those couples will still need the protection of basic property rights should their relationship break down. Cohabitation is a viable choice, just like marriage and civil partnership, and those who make the choice should have rights too, even if those rights are not the same as they would be if they married or entered into a civil partnership. How can it be right, for example, that a woman who has cohabited for many years, looking after the home and bringing up the children, should be left with nothing when the relationship breaks down?

It is therefore essential that we do not allow the introduction of civil partnerships for all to interrupt the discussion on rights for cohabitees. The job has not been done, and we must keep that discussion going.

In fact, there is clearly a momentum now for change (at long last!). Not only is the Government introducing civil partnerships for heterosexual couples, it has also of course recently published a consultation on introducing a system of no-fault divorce. Perhaps now is actually the time to press harder than ever for cohabitee rights.

We are hopefully on the verge of a new and better system of family law. No-fault divorce will make it less confrontational, and civil partnerships for all will provide greater choice. Why not add to that a fairer system of basic property rights for cohabitees?

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