There is still considerable discord between contemporary British reality and the law in England and Wales regarding the rights of cohabitees.
Recently, there were some encouraging signs that MPs may have been about to give renewed consideration to the possibility of reform, with the Family Justice Bill on the agenda for consideration in parliament. It appeared to be enjoying cross-party support, but due to the calling of the snap general election, the Bill ran out of time.
MPs would do well to heed the results of recent YouGov survey, which revealed that as many as 35 per cent of cohabiting partners may mistakenly believe themselves to enjoy the same rights as those who are legally married, with an identical percentage unaware of their rights in relation to property shared via joint tenancy.
Under such circumstances it is plainly irresponsible for the government to be allowing unmarried but cohabiting couples to live in ignorance of their full rights, especially when the excuses for doing so seem to be little better than, at best, laziness or, at worst, a dogmatic and outdated commitment to redundantly narrow definitions of what constitutes a family unit.
Frankly, it seems bizarre to the point even of political perversity that more hasn't been done to encourage partners to enter cohabitation agreements, particularly when the government has long styled itself as the champion of families. Champion of which families, one is tempted to ask: those of the twenty-first century or those of a fictitious 1950s parody universe?
Quite simply, 2014's attempt to take the Cohabitation Rights Bill to the House of Lords was a tardy, dismal and inadequate response to the Law Commission's 2007 recommendation that more be done to assure the rights of cohabiting couples. 2016's effort was hardly better.
There is plainly something wrong when only 2 per cent of the YouGov survey respondents shared a binding cohabitation agreement with their partner. Perhaps the government would be better off raising awareness of how cohabitees can make the most of the current law rather than continuing to trumpet trivial tax incentives for married couples. Maybe it's naïve, but surely reality has some place in modern British politics? There are, after all, nearly 3.5 million cohabiting couples in the UK and they represent the fastest growing family demographic in the country.
Lawyers too could do a better job of reflecting reality as all too often and almost inevitably they become caught up in a discourse that is dictated by the law and its politicking policymakers; they must shoulder some of the blame for couples' ignorance of their rights. A higher uptake of legally binding cohabitation agreements would surely remove much of the unnecessary expense, contention and unfairness encountered by cohabiting couples on separation.
Clearer information is required for those who choose to cohabit, particularly when buying property together.
Estate agents and conveyancing solicitors should be required to explain the legal position to couples who buy a house together and the fact that the law will assume each party owns an equal share should they split up and sell the house – regardless of how much money each party puts into the property. Plus, if only one party's name goes on the deeds, the ramifications for the unnamed party can be huge in the event of a split.
But let's not let our qualified disappointment in family lawyers in any way fudge the truth: the government is badly letting down a significant section of the population and urgently needs to take legislative steps to address the issue.
Society has evolved significantly from the situations which the law is designed to address, and the longer the game of catch-up becomes the more difficult it will be for millions of people. No one likes to play the shame game but it should be embarrassing to the government that it is so badly out of sync with society's needs.
It is patronising beyond belief that in the year 2017 we should still be debating whether encouraging cohabitation comes at the expense of encouraging marriage. Many families have numerous divorces across multiple generations, and as a society we should be grown up enough to accept that there is more than one way to show love and commitment in a relationship. Marriage is a wonderful and still relevant ancient sacrament, but it is not the be all and end all.
It is never too late to embrace sensible change but that doesn't mean that we shouldn't have some sense of urgency in pursuing it.
Contact Oratto on 0845 3883765 to speak with a family law adviser or use our contact form to arrange a call-back.