The Law Commission has begun its review of the Matrimonial Causes Act 1973, legislation that determines how finances are divided between separating spouses on divorce. This follows calls to reform the law from Baronesses Deech and Shackleton and, according to Lord Bellamy, a justice minister, aims to build on the no-fault divorce regime in mitigating conflict around divorce.
While some have welcomed this review, many family law specialists wonder why this is the government’s priority as cohabitation without marriage is on the increase. The latest census data shows that marriage is going out of fashion, with rates plummeting particularly among younger couples. Given that 51 per cent of children were born to unmarried parents in 2021, any negative connotations of being born out of wedlock are clearly in the past.
That should be reflected in law as the Matrimonial Causes Act is now 50 years old.
Cohabitants have limited rights on relationship breakdown and are forced to rely on outdated and complex property legislation. They can apply for financial provision for their children, but there is no right to financial support for themselves. This results in stark and often unfair outcomes for individuals separating after long relationships, many of which have involved children.
The government has repeatedly failed to act on calls to extend legal protections to unmarried couples and their children, most recently rejecting last year’s recommendations from the Women and Equalities Committee to reform cohabitation law.
The common argument against levelling the playing field is that it is a couple’s decision not to marry, and therefore benefit from legal protections on divorce. However, the reality is that this is not always an informed decision as the myth of the “common law marriage” persists – the committee highlighted that 46 per cent of the public assume that cohabitants automatically gain the same rights as married couples, increasing to 55 per cent of the public if a couple has had children.
England and Wales is notably out of step with other countries on this. Cohabitants were given protections in Scotland in 2006; Australia and New Zealand have extended legislation regarding the division of property to apply to couples who have been living together for certain periods in the same way as if the couple had married.
One suggestion is that our existing legislation on divorce could be extended to include cohabiting couples of a certain relationship length or where a child is born, as has been done in other jurisdictions, therefore entitling them and their children to a much wider range of legal protection.
Ministers should extend the forthcoming review of our divorce regime to include consideration of legislative change to reflect the reality of families and relationships in modern Britain.