Introduction
In England and Wales, spouses and civil partners can benefit from bespoke schemes of legal protections upon relationship breakdown and automatic entitlement following the death of a partner.Footnote 1 Despite cohabitation being the fastest growing family type in the UK,Footnote 2 there are no corresponding provisions for cohabitants.Footnote 3 It has been nearly four decades since Burns v Burns,Footnote 4 where the applicant was not eligible for financial provision following her relationship breakdown, despite cohabiting with her partner for 17 years and raising two children together. In this case, Fox LJ commented that the situation facing the applicant was an ‘unfairness … that is not a matter which the courts can control. It is a matter for Parliament.’Footnote 5 No reforms have been introduced by the UK government. What is more, repeated proposals for reform have been rejected.
In 2007, the Law Commission proposed a statutory scheme of legal protections on relationship breakdown for cohabitants.Footnote 6 This was rejected by the Labour Government who stated that they wanted to first understand the outcomes of the recently introduced protections for cohabitants in Scotland before engaging with the proposals.Footnote 7 In 2011, the Coalition Government confirmed that they did not ‘intend to take forward the Law Commission’s recommendations’, as cohabitation reform was not a priority.Footnote 8 Nine years on, the Conversative Government rejected renewed calls for reform from the Women and Equalities Committee,Footnote 9 who recommended that the government revisit the Law Commission’s earlier proposals.Footnote 10 The Labour Party hinted at a change in the tide with a promise to ‘strengthen the rights’ of cohabitants in their 2024 election manifesto.Footnote 11 However, there is still no indication when reforms are likely to be introduced and what they will entail.
England and Wales can also be considered an outlier in its approach towards cohabitation compared with neighbouring jurisdictions. Across Europe, some jurisdictions have introduced comprehensive legal protections for cohabitants,Footnote 12 while some ignore them entirely.Footnote 13 Others, like England and Wales, recognise cohabitants insofar as it economically benefits the government or to achieve other policy goals, such as protecting women through domestic abuse protections, but confer no meaningful protections on relationship breakdown or following the death of a partner.Footnote 14 Although the domestic position is not uncommon across Europe, it contrasts with the position in neighbouring Scotland and Ireland, where bespoke protections for cohabitants have been introduced.Footnote 15
Perhaps because of the government’s response, cohabitants in the UK have been reliant on strategic litigation based on human rights to challenge their exclusion from benefits reserved for spouses.Footnote 16 Despite a judicial recognition of the relevance of human rights in this context, this paper argues that the role that human rights can play in the cohabitation reform debate has been overlooked by advocates for reform. It will be argued that owing to the sustained governmental inertia and the increasing need for reform, a human rights framing of the issues facing cohabitants is necessary.
To demonstrate the applicability of a human rights framing in the cohabitation context and to trace its potential development, this paper is divided into five sections. Section 1 identifies framings commonly applied to the cohabitation debate, exploring arguments underpinning each approach. Section 2 moves to the focus of this paper: the role of human rights in the cohabitation debate. In examining the historical absence of a human rights presence, reasons for the lack of a coherent human rights narrative will be submitted. In concluding that these reasons should no longer stifle an engagement with human rights, Section 3 will then proceed to explore why a human rights framing should be adopted. Six prominent criticisms levelled at the implementation of a human rights framing will be analysed, assessing possible impacts on cohabitation reform. It will be concluded that this alternative framing will strengthen, not undermine, the calls for reform. To support this assertion, Section 4 will evidence how the debate is primed for a greater engagement with human rights argumentation through a judicial recognition of human rights infringements. Finally, Section 5 concludes by considering how advocates for increased protections could use human right argumentation in practice. It will be argued that the adoption of a human rights framing is overdue and such a framing can provide a greater impetus for reform and would increase the pressure on governments to ensure cohabitants can access legal protections.
While the need to adopt a human rights framing is emphasised in this paper with reference to the position in England and Wales, it has the potential to have a broader application across other European jurisdictions. As will be explored subsequently, it is unlikely that a human rights framing of cohabitation reform will stem from Strasbourg jurisprudence, whereas the current circumstances in England and Wales are conducive for the development of a human rights framing. While the initial adoption of this framing may be state-specific, the benefits of such are not limited to one jurisdiction and can be embraced by advocates for reform across Europe.
1. Framing cohabitation reform
Framing an issue is to engage with ‘forms of argumentation that help people organise information and make sense of the world’.Footnote 17 Relying on a specific set of beliefs or goals can ‘inspire and legitimate the activities and campaigns’.Footnote 18 Although the need for cohabitation reform is not yet being articulated using the language of rights, a number of alternative framings are identifiable in the current discourse. This paper will briefly explore three broad frames: economic; feminist; and socio-legal. While not exhaustive, this list identifies the themes often adopted in the debate.
(a) Economic
The need for cohabitation reform is most often framed as an economic issue, with the focus on alleviating the adverse effects facing cohabitants resulting from the absence of bespoke economic protections on relationship breakdown or bereavement. The economic implications of the current law have been at the forefront of the cohabitation debate since Burns. In recommending a comprehensive opt-out scheme of legal protections in 2007, the Law Commission acknowledged that although there was no consensus on the basis for financial redress for cohabitants, ‘principles focusing on the economic impact of the relationship’ were generally supported by those consulted on reform.Footnote 19
An economic approach is also adopted when evaluating the effectiveness of existing provisions. The common law principles which have been developed by domestic courts in response to the absence of legislative protectionsFootnote 20 are also often criticised for their emphasis on direct financial contributions.Footnote 21 The development of the common intention constructive trust into a tool for cohabitants to establish a beneficial interest in the family property irrespective of the legal title can be useful but is limited in its application. Once a trust has been established, the judiciary has the discretion to quantify shares as they see fit, giving effect ‘to the whole course of dealing’.Footnote 22 However, for a trust to operate, in the absence of an express agreement to share ownership of the property, the party seeking to establish a beneficial interest must evidence a financial contribution to the purchase price or mortgage payments.Footnote 23 Despite efforts to ‘familialise’ the trust law framework,Footnote 24 cohabitants are still required to satisfy property law principles, not ones that are more cognisant with family realities.
While there is no bespoke legislative scheme of protections, in specific circumstances cohabitants can seek legal recourse through broader legislative provisions available to all. The Inheritance (Provision for Family and Dependents) Act 1975 provides a route for cohabitants to challenge their inheritance entitlement when their partner dies and the Children Act 1989 allows for applications for financial provision from a non-resident parent to aid with child-rearing.Footnote 25 However, these routes are often insufficient owing to the financial inadequacies of the protections available or they are unworkable as any award may be dwarfed by the costs of litigation.Footnote 26 These criticisms have contributed to the calls for reforms and strengthen the arguments that the current provisions offer insufficient financial protections.
(b) Feminist
Much of the discussion about cohabitation reform is situated at the intersection of an economic and feminist framing. This stems from evidence detailing how women are disproportionately impacted by relationship breakdown.Footnote 27 Although the absence of protections for cohabitants is not ostensibly gendered, female cohabitants may be disproportionately impacted resulting from a lack of economic provision.Footnote 28 The characterisation of cohabitation reform as a feminist issue has been adopted by the Labour Party. Prior to entering government, Emily Thornberry MP pledged that Labour would address ‘three injustices facing women’, one of which was the absence of legal protections for cohabitants.Footnote 29
Notably, feminist arguments have also been used to oppose automatic protections for cohabitants. Auchmuty argues that the real issue facing women is not the absence of legal protections, but the sustained gender inequality in relationships, and society more widely, which is not being addressed.Footnote 30 Auchmuty concluded that bespoke protections will ‘discourage further efforts within society towards gender equality or by individual women to achieve financial independence’.Footnote 31 Bottomley has also urged caution as to the extent to which legislative protections should be heralded as protecting the property interests of female cohabitants following relationship breakdown.Footnote 32 Another line of argumentation which is pervasive in the cohabitation debate, and will be explored in greater detail subsequently, is that the introduction of legislative protections may undermine the position of women. Baroness Deech, a former academic, a member of the UK House of Lords and a strong opponent of cohabitation rights, has argued that redistributive provisions for cohabitants are ‘based on outdated views of the roles played by men and women living together’ and portray the female party as the ‘victim’ in need of financial support.Footnote 33
Despite a feminist framing being adopted on both sides, it is a clear line of argumentation in cohabitation debate.
(c) Socio-legal
A socio-legal framing sees the need for cohabitation reform articulated with reference to the failure of the law to keep up with social change. The relationship between ‘the legal and the social’ has been explored in detail by Eekelaar, who recognised how normative assumptions about how people should behave can influence the development of family law.Footnote 34 Although social norms can be ‘difficult to identify’ and may involve a degree of ‘vagueness and indeterminacy’,Footnote 35 it is hard to deny that cohabitation has become a social norm in England and Wales. This can be evidenced by its growing prevalence – an increase of 144 per cent between 1996 and 2021Footnote 36 and the prediction that one in four couples will cohabit by 2031.Footnote 37 Empirical research into why people cohabit, their understanding of their legal rights, and their opinions on how the law should be reformed are often invoked as powerful arguments for the need to develop the law in line with social attitudes and expectations.Footnote 38
A socio-legal framing also plays a significant role in debates surrounding the shape that reform should take. It is generally accepted by advocates for legal reform that lawmakers should take a function-based approach.Footnote 39 Traditionally, the state has taken a form-based approach towards family regulation. Only when parties had opted into a marriage or civil partnership would the state impose obligations and afford rights. However, as the rates of cohabitation have continued to rise, there has been a ‘functional convergence’ between the relationship of spouses and cohabitants.Footnote 40 The characteristics once widely associated with marriage – interdependence, commitment, intimacy, amongst others – are no longer exclusively recognised in marriages. As much as cohabitants are increasingly functioning in the same way as spouses, many marriages are now often reflective of cohabitation as a negotiated and potentially financially independent partnership.Footnote 41 This argument is strengthened by the introduction of non-contested divorce, which removes many of the legal barriers to divorce and shows a legal recognition of the reality that for many marriage is no longer a life-long commitment.Footnote 42 The social reality of cohabitation and marriage has infused the debate and supports arguments that a function-based approach to reform is needed.Footnote 43
2. Developing a human rights frame
The cohabitation debate has consistently been subjected to different conceptual framings. These are not mutually exclusive, with proponents often adopting an intersectional approach to emphasise the need for reform. There is, however, a notable absence. Stammers contends that since the Enlightenment period, social movements have been ‘[utilising] rights claims to challenge such relations and structures of power’.Footnote 44 As human rights are ‘one of the most pressing and intractable matters of political life’,Footnote 45 a human rights framing can be particularly potent. Despite this, a prominent human rights discourse does not yet exist in the cohabitation context. When human rights arguments are raised, the discussion is often centred on the concern that the introduction of protections for cohabitants could infringe the rights of cohabitants, not safeguard them.Footnote 46 Similarly, in the media the focus is often on informing cohabitants of the financial consequences they face on relationship breakdown or bereavement, as opposed to advocating for the need to introduce greater protections.Footnote 47
The absence of a human rights discourse is surprising following successful human rights litigation by cohabitants. More so after Re McLaughlin,Footnote 48 where the UK Supreme Court held that the exclusion of unmarried parents from bereavement benefits was incompatible with the European Convention on Human Rights (ECHR), and which was widely reported on.Footnote 49 Although strategic litigation has the potential to bring ‘major media attention to a particular issue’,Footnote 50 this is yet to occur. In addition, there is also a lack of a human rights discourse in academic commentary. Although previous research by this author has explored in detail the role that litigation based on human rights could play in advancing the protections available for cohabitants,Footnote 51 any further recognition of the relevance of human rights remains largely unexplored. What can be identified in the discourse, however, is a foundational recognition of equality and discrimination issues, which could form the basis of a wider human rights framing.
References to potential discrimination or equality issues resulting from the current law are often made by family law practitioners commenting on the impacts of specific legislative provisions on specific groups of people.Footnote 52 Practitioners and judges writing extra-judicially have also expressed concern about the discriminatory impact facing children resulting from shortcomings of provisions for unmarried parents when compared with those available for married parents.Footnote 53 While the above references demonstrate that there is a recognition of discrimination and equality issues arising from the current law, these disparate concerns are yet to develop into a wider recognition of the relevance of human rights argumentation in the reform debate. The unwillingness of the European Court of Human Rights to be proactive in recognising the rights of cohabitants and the weight placed on autonomy could provide an explanation as to why this has not occurred.
3. Barriers to the development of a human rights frame
(a) European Court of Human Rights jurisprudence
In a number of cases at the Strasbourg level, cohabitants have been unsuccessful in arguing that their exclusion from legal protections reserved for spouses infringes Article 14, the prohibition of discrimination, with Article 8, right to respect for private and family life.Footnote 54 The margin of appreciation granted to states in areas of social or economic sensitivity has proven fatal for claims by cohabitants.Footnote 55 In Shackell v United Kingdom, the Chamber held ‘the promotion of marriage, by way of limited benefits for surviving spouses, cannot be said to exceed the margin of appreciation afforded to the respondent Government’.Footnote 56 While recognising that Strasbourg does need to proceed with caution in areas which are political or where there is no clear consensus across Europe, Draghici expresses disappointment in how the Court has ‘resorted to the notions of consensus and margin of appreciation to avoid a substantive analysis of proportionality’.Footnote 57 The same concerns about the margin of appreciation granted by Strasbourg were identified by Wong, in an early exploration into the impact that human rights could have on the rights of cohabitants, not long after the implementation of the Human Rights Act 1998.Footnote 58 This cautious approach by Strasbourg could be interpreted as signalling that there is a limited role for human rights and may contribute to the absence of a wider discourse.
Domestically, however, cohabitants using ECHR-based arguments to challenge their exclusion from spousal benefits have fared much better.Footnote 59 Questions arise as to why these successes have not been capitalised on by advocates for reform. Perhaps, as considered in O’Meara v Minister for Social Protection,Footnote 60 this is because the Supreme Court has since signalled limits to the interpretation of Convention rights beyond Strasbourg jurisprudence, questioning the authority of earlier cases and threatening the success of future challenges by cohabitants. A further possible explanation is because of the nature of the claims and the benefits that have been litigated. Much of the discussion following McLaughlin is focused on the Court’s approach to challenges to social security measures and reconciling this with previous social security cases.Footnote 61 While litigation has targeted specific and disparate social security and pension provisions, this paper argues that it should be interpreted more widely. These cases show the direct impact that a litigation strategy based on human rights can have on the legal position of cohabitants. This reliance on human rights, and more importantly judicial recognition of the relevance and potential infringement of human rights, should therefore be harnessed and used to strengthen the calls for reform.
(b) The autonomy argument
Discussions surrounding possible reform and the relevance of human rights have predictably been met with concerns by those who perceive the introduction of legal protections for cohabitants as undermining the autonomy of those who want a relationship free from state regulation. The protection of autonomy continues to occupy a central role in the cohabitation debate. It can also provide an explanation for the absence of a human rights narrative. The following section will evidence how the autonomy argument, while persuasive, cannot justify the state’s failure to act and can strengthen the argument that a new approach based on human rights should be adopted.
Families, and specifically adult relationships, are inherently private. One reason for conferring autonomy during the relationship is that ‘families do not want to be lectured about their behaviour or what type of relationship they are in’.Footnote 62 Although external structures, such as welfare and housing, influence family life, there is a belief in non-intervention that shrouds relationships and families.Footnote 63 A move away from traditional relationship roles sees the meaning of marriage and family ‘vary from relationship to relationship’.Footnote 64 As a result, autonomy in the organisation of family affairs is being increasingly encouraged and applies to all couples.Footnote 65 For spouses, autonomy decreases once the relationship comes to an end, either through breakdown or death, whereas for cohabitants it continues. This can be justified, from an autonomy perspective, owing to the tacit consent of spouses to state interference in their relationship.Footnote 66
The debate surrounding whether more comprehensive legal protections for cohabitants are needed can be summarised as the ‘pitting of autonomy against protection’.Footnote 67 Unlike marriage, described by Eekelaar as ‘a legal event with legal consequences’,Footnote 68 cohabitants have not formalised their relationship. The argument that increased rights for cohabitants would amount to ‘an attack on the liberty of two people who have refrained from marriage’ has been repeatedly promulgated by Baroness Deech.Footnote 69 The extension of civil partnerships to different-sex couplesFootnote 70 and the introduction of no-fault divorceFootnote 71 strengthens this argument as formalisation is now more accessible for those who choose it.Footnote 72
It must be noted, however, that the continued prevalence of the ‘common law marriage’ myth – where nearly half of those living in England and Wales wrongly believe that cohabitants can attain a ‘common law marriage’ after living together for a certain amount of time and subsequently benefit from the same rights as spousesFootnote 73 – undermines the notion that couples have autonomously opted to live in a relationship type free from state regulation. Autonomy arguments also fail to account for ‘uneven couples’ – where one party wants to marry but the other does notFootnote 74 – or those who plan to marry in the future, but the relationship breaks down or one partner dies before this happens.Footnote 75
Ultimately, as argued by Scherpe, ‘almost all legal rules are – and are meant to be – infringements on autonomy’.Footnote 76 While arguments that the need to introduce legislation to protect cohabitants on relationship breakdown or bereavement are persuasive, it may be pointed out that autonomy is not necessarily the antithesis to legislative intervention. Instead, the balancing of the state’s interference with the autonomy of cohabitants should be considered when determining the appropriate mechanisms for protection. Recommendations for reform generally propose that any legislative scheme for cohabitants should be an opt-out scheme with qualifying cohabitants automatically conferred rights and obligations,Footnote 77 leaving cohabitants ‘free to make their own financial arrangements’.Footnote 78 The ability of cohabitants to opt-out straightforwardly without having to seek legal advice would preserve the autonomy of cohabitants while simultaneously ensuring their protection. Therefore, autonomy arguments should not hinder the introduction of cohabitation reform or justify state inaction.
The autonomy/interference dichotomy identified above could also provide an explanation as to why there is yet to be meaningful engagement with the adoption of a human rights framing in the cohabitation context. The perception that couples are not formalising because they choose not to, especially following the expansion of civil partnerships, can dilute human rights-based arguments for reform as couples are no longer excluded from specific registration regimes. Moreover, it could be said that regulating the family through a human rights framework may result in ‘penetrating the veil of family privacy’ in a way that reduces the family unit into its ‘constituent parts’.Footnote 79 Baroness Deech has argued that family law should ‘safeguard personal autonomy’.Footnote 80 Instead, the inference is that a reliance on human rights argumentation to increase the likelihood of legislative reform can dismantle the autonomy of individuals and impact their ‘freedom to choose a way of living’.Footnote 81
Crucially, as has been demonstrated, the autonomy argument is inherently flawed and fails to reflect the realities of cohabitants. While in other contexts, the preference for autonomy may conflict with the state interference resulting from human rights considerations, in the cohabitation context this interference is necessary to address the current injustices facing cohabitants.
Since the debate is already influenced by different frames, the omission of a human rights frame may seem inconsequential. However, the current debate is at risk of stagnating. The articulation of the need for cohabitation reform using the above frames is yet to result in meaningful legal change. Many of the economic and social arguments have remained the same since the Law Commission’s 2007 proposals. The recent report by the Women and Equalities Committee engaged with the same lines of argumentation. It is positive that the Labour Government has pledged to consult on cohabitation reform, but progress in this area needs safeguarding. Until the law is changed, those advocating for reform should continue to explore how the debate can be strengthened to ensure that the government commit to its promises to reform the law surrounding cohabitation.
4. Merits of a human rights framing
This paper will conclude that a human rights framing would be beneficial in the cohabitation context. To demonstrate this, its primary focus is on refuting the possible disadvantages of a human rights narrative, as negative reasoning often carries greater persuasive weight than positive outcomes – especially in politicised contexts. However, this analysis should be considered against the backdrop of the positive impact that a human rights narrative can have on social movements advocating for legal reform. Unlike the disadvantages of a human rights framing explored below, listing the disparate ways in which this framing can inspire social movements fails to capture its nature. In short, the benefit of this frame ultimately stems from its expansiveness, its ability to unify different social movements by the adoption of recognised aims and beliefs and its identification of the state as duty-bearers.Footnote 82
The potential of human rights to bolster social movements is well-documented, but this will not be possible unless such a framing is adopted. To strengthen the likelihood of this happening, this paper will rebut potential disadvantages that are often levelled at a reliance by social movements on human rights and show that, in the cohabitation context, these disadvantages cannot withstand scrutiny. The disadvantages below do not represent an exhaustive list. There will be other drawbacks to using human rights which are unique to specific social movements. However, this paper explores a range of disadvantages which illustrate the different ways in which an engagement with human rights can hinder calls for reform in this context.
(a) Displacement thesis
A first potential disadvantage of a human rights framing is what is referred to as the displacement thesis. The displacement thesis is concerned that a human rights framing threatens to ‘undermine movements for radical social change by tempering their ambitions and limited their horizons to a narrow set of legal demands’.Footnote 83 It can force proponents for reform to identify specific instances of differential treatment as opposed to focusing on larger, structural change. Brown argues that human rights has its own ‘particular imagine of justice’ which ‘displaces, competes with, refuses, or rejects other political projects’.Footnote 84 As a result, O’Connell recognises that there can be an ‘apprehension’ that can accompany attempts to frame social movements as a human rights issue.Footnote 85 A more balanced approach towards the displacement thesis is offered by Kennedy, who recognises that a human rights framing can be used to ‘leverage interests in other issues’ but could also ‘close off broader inquiries’.Footnote 86
While this understanding of a human rights framing may be detrimental in other social movements, it is argued that this does not reflect the engagement of human rights in this context. In the UK, for example, there are over 3.5 million cohabitants.Footnote 87 Similar numbers have been noted in other European states. Society already accepts cohabitation, with many falsely believing cohabitants already have legal protections.Footnote 88 The calls for cohabitation reform are centred on legal demands, not societal, structural change. Notwithstanding the fact that some political parties still see formalised relationships as the ideal relationship type,Footnote 89 the increasing prevalence of cohabitation implies that the societal change has already occurred. The legal change is yet to occur. For this reason, the development of a human rights discourse to achieve legal reform will not undermine any fledgling social movement.
In addition to the displacement thesis having little relevance in the cohabitation context, the concept itself has been subject to criticism. O’Connell relies on various examples, including a right to racial equality in the US, to evidence that social movements can – and have – been empowered by a human rights framing.Footnote 90 Through this exploration, O’Connell concludes that ‘the mobilisation of human rights by social movements … need not mean they will be led down a political or strategic blind alley’.Footnote 91 Fears that a human rights framing narrows claims and overlooks wider structural issues owing to its focus on legal reforms are not necessarily justified. As seen in the cohabitation context, the focus should be on legal change to align with the social change that has already occurred.
(b) Lack of diversity in solutions
Alongside ‘crowd[ing] out other ways of understanding harm’,Footnote 92 the focus on legal arguments could influence the identification of appropriate solutions. Human rights arguments focus on the role of the state. If there has been an infringement, an alteration to or an introduction of legislative provisions is a necessary remedy. As a result, a human rights framing is primarily concerned with legal solutions. It can be argued that this focus ‘delegitimates remedies in the domain of private law and nonstate action’.Footnote 93 This focus on legislative solutions has been criticised by opponents to cohabitation reform owing to the autonomy arguments explored above. However, as has been demonstrated, the autonomy argument falsely assumes that all cohabitants have actively chosen not to formalise their relationship.
It must be acknowledged that other methods of protecting cohabitants have been attempted. One such method is the use of cohabitation agreements. These agreements are legal contracts allowing cohabitants to organise their assets and finances and are enforceable through contract law if they are in the form of a deed.Footnote 94 It is argued that there are three reasons why these agreements fail to provide an adequate solution for cohabitants. First, while cohabitation agreements are available to cohabitants, Thompson submits that these agreements are only appropriate ‘if the parties are aware of what their rights are’.Footnote 95 The prevalence of the ‘common law marriage’ myth therefore threatens the usefulness of cohabitation agreements. Secondly, for those parties who are aware of their legal position, legal pragmatism may conflict with the romanticism of embarking on a life together. In Midland Bank v Cooke, Waite LJ commented that ‘for a couple embarking on a serious relationship, the discussion of the terms to apply at parting is almost a contradiction of the shared hopes that have brought them together’.Footnote 96 If parties have approached the agreement of contractual terms cautiously, not wanting to insult or upset their partner, the effectiveness of agreements in reflecting parties intentions is impacted. Thirdly, if parties do enter into a cohabitation agreement, the formality of contract law means that to ensure a fair and intended outcome, cohabitants should periodically revisit the agreement, taking into account changes in circumstances as the relationship develops. Reflecting on the practical use of contract law by cohabitants, Sanders submits that ‘no problems arise if the parties have established in an agreement, adapted to changing circumstances which can be proven in court, who owns what and how a party who has helped the other accumulate or improve assets is to be rewarded’.Footnote 97 In these circumstances cohabitation agreements could be a useful recourse, but as Sanders concludes, ‘only rarely, however, are such detailed agreements drawn up’.Footnote 98 Questions have also been raised about the appropriateness of contract law mechanisms to respond to informal relationships where obligations and expectations emerge over time.Footnote 99
Beyond using contract law, there have been attempts to protect cohabitants through education. In 2004, the Living Together Campaign, funded by the Ministry of Justice, launched a website to inform cohabitants of their legal position. In evaluating the effectiveness of the campaign, Barlow, Burgoyne and Smithson concluded that, although the website was useful in disseminating information, ‘it is not prompting cohabitants into immediate action’.Footnote 100 Reasons for this included that some parties to the relationship did not want a cohabitation arrangement, some felt uncomfortable discussing this with a partner, others felt optimistic that an arrangement was not needed and affairs would be organised fairly on separation, and some did not want the cost of legal action. Barlow et al ultimately recommended that while reform should allow for cohabitation agreements, it should ‘primarily’ provide ‘a presumptive scheme giving cohabitants … automatic rights and obligations akin to marriage from which couples can opt out’.Footnote 101 In 2022, the UK Government expressed a preference for cohabitants to be informed about their legal position through awareness campaigns as opposed to legal intervention.Footnote 102 While the Women and Equalities Committee did recommend that the government should conduct an awareness campaign, this was coupled with a recommendation for legislative intervention owing to the concerns about the campaign’s effectiveness.
A human rights framing is aimed at securing legal reform. Attempts have been made to address the economic disadvantages facing cohabitants without the need for state intervention, but these have been unsuccessful. Therefore, while this focus on legal solutions could be perceived as a negative consequence of such a framing, in the cohabitation context there is a need for state intervention.
(c) Reliance on litigation
A legal approach can also prompt an increased reliance on strategic litigation to achieve change. Strategic litigation often takes the form of test cases brought by campaign groups. As recognised by Lord Reed in R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions, there has been an increased popularity of such cases.Footnote 103 This reliance on litigation has, however, been criticised. Hunt has identified that ‘those who are hostile towards rights-based strategies tend to conflate “rights” with “litigation”’.Footnote 104 In launching litigation to achieve their aims, activists are seeking to ‘persuade judges, and in some cases juries, to support the movement group’s legally-defined goals’.Footnote 105 While this can result in legal change, it has been argued that using litigation as the mechanism to achieve social change threatens to reduce complex social issues down to isolated legal issues for the purpose of the litigation.Footnote 106 This can result in ‘hollow victories’ which have no widespread consequences beyond the successful challenge to specific provisions.Footnote 107
While potentially problematic for other social movements, a focus on litigation does not disadvantage calls for cohabitation reform. Instead, litigation could be a useful tool for cohabitants challenging their legal position. Litigation has been at the forefront of the creation of a rights-based strategy to achieve greater protections for cohabitants.Footnote 108 Despite this, it should be recognised that it is unlikely that any bespoke scheme of legal protections for cohabitants will be introduced through litigation, owing to the limitations of rights-based arguments in this context.Footnote 109 The litigation that has been successful domestically has focused on challenging specific instances of discrimination in areas including pensions,Footnote 110 bereavement benefits,Footnote 111 and bereavement damages.Footnote 112 Following these cases, the law has been amended to rectify the discrimination.Footnote 113 This may not address the wider vulnerabilities facing cohabitants, but it encapsulates the ‘salami-slicing’ approach towards achieving substantial reform through piecemeal, palatable changes, which Lady Hale identified as key to reforming family law.Footnote 114 An increasing alignment between the legal position of spouses and cohabitants in some areas makes it more difficult for the government to justify maintaining differences in others. While a reliance on litigation may not achieve widespread reform, it is a useful tool for cohabitants who are seeking to advance their legal position.
Strategic litigation can also strengthen calls for reform with legal accountability. King has identified numerous benefits to legal accountability which ‘can provide a good dispute resolution mechanism for some classes of disputes’.Footnote 115 The first is that successful litigation ‘compels the state to address the issue’.Footnote 116 In the cohabitation context, this is evident in how the government rectified instances of discrimination facing cohabitants once it had been alerted to it by the courts.Footnote 117 If the courts decide to issue a declaration of incompatibility,Footnote 118 this ‘does not affect the validity, continuing operation or enforcement’ of the impugned legislation.Footnote 119 Instead, it creates a dialogue between the judiciary and Parliament. This either prompts legislative reform to ensure the law is Convention-compatible or issue a determination that the provision can be justified despite the declaration of incompatibility.Footnote 120 Either way, it would require the government to ‘address the issue’.Footnote 121
A reliance on litigation to achieve legal reform may be seen as a negative of a human rights framing by some. However, in the cohabitation context, litigation has proven a useful tool to prompt reform. It may be that future claims proceed to challenge remaining differences in treatment between spouses and cohabitants.Footnote 122
(d) Attracting competing claims
A negative consequence of engaging human rights arguments to attempt social or legal change is that it can attract counterclaims by opponents to the movement. This has been seen in the debates surrounding abortion rights. Although human rights have been weaponised in attempts to secure greater access to abortion, these arguments have been met with counterclaims that increased access could infringe ‘fathers’ rights’Footnote 123 or the rights of the foetus or embryo.Footnote 124 This competing use of human rights to either support or oppose reform is also identifiable within the cohabitation context. In contrast to the claims made in this paper that the lack of protections for cohabitants is an equalities issue, Baroness Deech has consistently relied on the ECHR to oppose increased protections for unmarried couples, arguing that extending legal protections on relationship breakdown could infringe Article 8 by inflicting legal obligations on unwilling partners.Footnote 125
Although not a direct comparator as it was not launched as counter litigation, the position in Navarra, one of the seven Autonomous Communities in Spain, could illuminate how competing claims could be structured. Introduced in 2000, the law in Navarra assimilated the position of spouses and cohabitants following the death of a partner and granted cohabitants automatic succession rights, provided the partner met certain requirements.Footnote 126 Crucially, cohabitants were unable to opt-out. Litigation was launched before the Spanish Constitutional Court on the basis that the measures violated the fundamental right to free development of personality and infringed the autonomy of cohabitants. The Court accepted these arguments, and the law was declared unconstitutional.
Strasbourg grants states a margin of appreciation ‘to treat differently married and unmarried couples, particularly in matters falling within the realm of social and fiscal measures’.Footnote 127 This is to ensure that the Convention respects national cultural traditions and policies within each specific state. This discretion, paired with the fact that there is no emerging consensus across Europe to protect cohabitants,Footnote 128 can explain why Strasbourg has yet to depart from Shackell v United Kingdom and conclude that it is no longer justifiable to exclude cohabitants from legal protections reserved for spouses. While there is no domestic margin of appreciation,Footnote 129 domestic courts have also recognised that governments are best placed to make decisions of sensitive social policy, owing to the need for political accountability.Footnote 130 As a result, while governments can choose not to introduce a scheme of legal protections for cohabitants, they similarly have the authority to introduce such reforms. While the proportionality of these protections could be assessed under Article 8, if the government can demonstrate that they have attempted to balance the need to protect cohabitants who do not realise they have no economic entitlements from their partner and those who choose not to formalise their relationship to avoid such liabilities, the decision to introduce protections will be justifiable under Article 8. An opt-out model should satisfy an Article 8 proportionality analysis.
Therefore, while the engagement of a human rights framing to secure greater protections for cohabitants could prompt a similar engagement to challenge these protections, this is not necessarily a disadvantage of a reliance on human rights. Instead, it places human rights considerations at the centre of the debate surrounding the appropriate level of protections to ensure that any reforms do not infringe the rights of both proponents and opponents of increased protections.
(e) Reinforcing stereotypes
The next potential consequence is not a direct result of adopting an inherently legal framing but is concerned with the way human rights issues are articulated. It has been argued by Brems and Timmer that stereotyping – the act of ‘assign[ing] certain roles and characteristics to a group’Footnote 131 – is in itself a human rights issue.Footnote 132 Ironically, a human rights framing may entrench stereotypical views of those that the framing is attempting to benefit. Human rights law requires the identification of a victim.Footnote 133 This will inevitably involve relying on language of victimisation and stereotypes to expose the human rights concerns affecting a particular group of people. Referencing the women’s rights movement, Kennedy argues that a reliance on human rights ‘increases the incidence of descriptions of women as mothers-on-pedestals or victimized care givers’.Footnote 134 In the cohabitation context, this would require exploiting similar stereotypes.
The stereotypical cohabitant in need of increased protections is Mrs Burns – a well-known figure in family law debates emerging from Burns, the facts of which were explained above. Auchmuty observes that Mrs Burns ‘pops up everywhere in family law descriptions of the way cohabitants are treated in property law’.Footnote 135 Auchmuty’s view is that Mrs Burns’ story amounts to an ‘atrocity tale’Footnote 136 – an extreme example of an unfortunate individual who ‘believing they had rights as cohabitants … were sadly disillusioned when the relationship ended’.Footnote 137 It is, therefore, not reflective of the average cohabitant and should not form the basis of legal reform.Footnote 138 Bottomley agrees that the ‘continued use of the figure of Mrs Burns distorts issues raised by contemporary cohabitation patterns’ and can paint a ‘rather out of date picture’.Footnote 139
Despite this, although a ‘Mrs Burns’ scenario, with women staying at home to raise the children and making no financial contributions, is no longer typical,Footnote 140 it still occurs.Footnote 141 Moreover, despite an increasing alignment of equality between men and women in the workplace, women still face a disproportionate financial loss following divorce when compared with men, owing to ‘their traditional role as home-maker and child-carer’.Footnote 142 The gendered effects of divorce have been recognised by the judiciary. In Miller v Miller; McFarlane v McFarlane,Footnote 143 Lord Hope recognised how a career break taken to concentrate on having a child or raising a family may be temporary but the consequences of this can be ‘irrecoverable’.Footnote 144 While the homemaking partner is contributing to the family unit, they are not accruing any ‘appreciable assets’ whereas the working party is.Footnote 145 In her written evidence to the Women and Equalities Committee, Anna Heenan highlighted how the ‘division of childcare responsibilities in families has unequal financial consequences’, such as hindering career progression, which can impact future expected earnings.Footnote 146 The economic implications of undertaking different roles in a relationship will be exacerbated when the relationship ends and the parties’ ability to support themselves is impeded.Footnote 147 There is plenty of evidence to indicate that women are still disproportionately financially impacted on divorce, often as a result of child-care responsibilities.Footnote 148 For cohabitants who have no recourse to redistributive provisions on relationship breakdown, these economic impacts may be more severe.
Framing cohabitation reform as a human rights issue is reliant on showing how one group in society is disadvantaged when compared with another. To do this effectively and convincingly, a reliance on stereotypes of the female homemaker and the ‘atrocity tales’ of Mrs Burns and others who have faced similar circumstances is necessary. While this may be detrimental to those to do not conform to the stereotype of a ‘homemaker’, it can expose the extreme consequences that an absence of protections can have. It is arguably the most persuasive line of argumentation.
5. Cohabitants, human rights, and the judiciary
The adoption of a human rights framing in the cohabitation context is not unsubstantiated. This paper is not attempting to make the initial connection between human rights and cohabitation reform. This has already been established by a judicial recognition that excluding cohabitants from benefits reserved for spouses can infringe human rights. This legal recognition has laid the groundwork for framing the debate through a human rights lens.
An early indicator of the direct impact that human rights could have was seen in Marckx v Belgium. Footnote 149 In Marckx, the Strasbourg Court was asked to determine whether a law limiting the inheritance entitlement of a child born to unmarried parents infringed Article 14 when read with Article 8 and Article 1 of the First Protocol (protection of property). Although Belgium tried to justify the differential treatment with the legitimate aims of protecting the ‘traditional family’ and protecting the unmarried mother from unwanted legal ties to their child, these arguments were rejected owing to the fact that ‘the interest of an “illegitimate” child … is no less than that of a “legitimate” child’.Footnote 150
At a Strasbourg level, there have been other attempts by cohabitants to successfully rely on human rights to challenge their exclusion from certain benefits. However, the Strasbourg Court has confirmed that states are not infringing human rights by excluding cohabitants from spousal tax benefits,Footnote 151 bereavement benefits,Footnote 152 redistributive provisions following relationship breakdown,Footnote 153 and inheritance tax exemptions.Footnote 154 Despite this, as explored above, domestic courts have recognised that the exclusion of cohabitants from benefits reserved for spouses can infringe human rights. This growing body of domestic case law can serve to legitimise the framing of the cohabitation debate as a human rights issue. Arguments that the absence of legal protections for cohabitants infringes their human rights are not abstract or unrealistic. They are grounded in a judicial recognition that human rights are a relevant consideration.
This same successful engagement with human rights argumentation has not yet occurred at Strasbourg.Footnote 155 As a result, when considering the development of a wider human rights narrative inspiring cohabitation reform in other European jurisdictions, there is an absence of judicial authority to bolster the use of human rights. Although this may slow the development of a human rights narrative outside of England and Wales, the above analysis is generally not specific to this jurisdiction. While some of the disadvantages of a human rights framing are analysed from the domestic perspective, there is no reason why a similar framing could not occur in other jurisdictions.
Although the above cases may be limited to disparate examples of differences in treatment that have amounted to an infringement of Article 14, they provide an insight into how differences in treatment between spouses and cohabitants can amount to human rights infringements. It has been argued that ongoing differences in treatment may also amount to an infringement of Article 14 and, if litigated, would likely add to the growing body of successful challenges by cohabitants.Footnote 156 These cases provide a legal foundation to the arguments advanced in this argument and show that the cohabitation debate is primed for a wider human rights framing.
6. Human rights framing in practice
This paper has explored why the adoption of a human rights frame in this context is needed and evidenced how the cohabitation debate is primed for such. It concludes by proposing what this framing may look like in practice. It is argued that advocates for reform should use both legal and normative frameworks to ground abstract discussions of cohabitation reform in human rights obligations to galvanise calls for reform and place increasing pressure on the government.
While there is no explicit recognition of the right for legal protection for cohabitants under human rights law, the European Convention on Human Rights, specifically Article 14, has provided a legal framework for cohabitants to successfully challenge differences in treatment between themselves and spouses. Despite this, as noted above, there has been a limited engagement with such cases by those advocating for reform. Moreover, in its report, the Women and Equalities Committee omitted to explore in any depth the recognition by the UK Supreme Court that the exclusion of cohabitants from a social security benefit reserved for spouses infringed Article 14 of the EHCR. As the Bereavement Benefits (Remedial) Order 2023 SI 2023/134 was being finalised, it may be that the issued identified by the Court was understood by the Committee as resolved. It is disappointing that the possibility of any further Article 14 infringements stemming from the absence of legal protections was not acknowledged. This failure to recognise potential human rights infringements was also reflected in the written submissions to the Committee. In 215 submissions, which included evidence from academics, practitioners and the public, there was no detailed reference to concerns that the legal position of cohabitants potentially infringed human rights legislation.
When discussing the need for reform, the debate is generally focused on economic, social and feminist concerns. Going forward, this need should be articulated with reference to case law which has resulted in a judicial recognition of human rights infringements. Moreover, more should be done to emphasise the likelihood that ongoing differences in treatment may similarly be found to infringe human rights if litigated. Strategic litigation and campaign-backed test cases could provide a route for these concerns to be explored before the courts. With previous recognitions by the judiciary of rights infringements in mind, the threat of strategic litigation challenging existing differences in treatment could place pressure on the government to engage with reform or risk being found to have infringed Article 14 again.
Alongside engagement with legal frameworks, using normative frameworks of human rights language would facilitate the reframing of the cohabitation debate. Advocates for reform should engage further with language derived from human rights law and use this language when articulating the need for reform. Language derived from human rights law can be both explicit and implicit.Footnote 157 In this context, examples of explicit human rights language – ‘that which identifies explicit state duties’Footnote 158 – would include references to the rights of cohabitants under the ECHR or other human rights instruments. It would see calls for reform engage further with states’ obligations to protect human rights and explore in greater detail how the current position of cohabitants fails to uphold these obligations. There is an overlap between the use of explicit human rights language such as this and an engagement with the legal framework surrounding the human rights of cohabitants. Since Strasbourg has not been as willing as domestic courts to recognise an infringement of Convention rights resulting from differential treatment between spouses and cohabitants, explicit human rights language is arguably more pertinent in domestic campaigns for reform. Using explicit human rights language can be useful to provide legal legitimacy to calls for reform and to forge a link between disparate instances of differential treatment. However, using implicit human rights language is also advisable to ensure that arguments for reform are accessible to those without legal knowledge.
Implicit human rights language – normative use of rights without identifying any specific legal rights, obligations or instruments – could be more influential at the early stages of developing a human rights framing. Implicit language in this context could refer to terms such as ‘discrimination’ and ‘equality’. As explored above, occasional and sporadic use of these terms can be identified in the current discourse. However, it is argued that advocates for reform should begin to use these terms more consistently when explaining the current position of cohabitants when compared with spouses. Even without explicit reference to specific human rights provisions, repeated and consistent reference to the possibility that the difference in treatment creates inequality between spouses and cohabitants and discriminates against cohabitants has the potential to shift perceptions of the issue and aid a gradual reframing as a human rights concern.
Conclusion
The adoption of a human rights framing by social movements is not a new concept. However, this has not yet occurred in the cohabitation context. This paper has put forward the case for the development of a human rights framing of the cohabitation debate to draw attention to the ongoing legal disadvantages facing cohabitants and to continue to place pressure on the government. This has included a review of the current discourse, explaining why there is an absence of an engagement with human rights, analysing and ultimately dismissing potential disadvantages of a human rights framing, evidencing how a judicial recognition of human rights infringements provides a legal legitimacy to relevance of human rights and, finally, submitting what such a framing could look like in practice.
Both in England and Wales, and other European jurisdictions,Footnote 159 there is an absence of protections for cohabitants. The current discourse is failing to recognise the intrinsic value of human rights to the cohabitation debate and the role they can play. Until comprehensive reforms are introduced, there is a clear need to increase pressure on governments and galvanise calls for reform. The adoption of a human rights framing provides a strategic and powerful opportunity for proponents of cohabitation reform to achieve this.
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