A Journey through Separation Ep7

Dr Andy Hayward, Associate Professor in Family Law

A podcast with Associate Professor, Andy Hayward of Durham Law School, Durham University who has been and continues to be at the forefront of cohabitation reform.   In this episode Emily and Lucia discuss the background to reforming the law on cohabitation, how other jurisdictions address cohabitation and what reform may look in the future.  Using Andy’s specialist knowledge on this subject, this podcast gives an insight into the world of cohabitation reform with helpful information about the steps which have been taken and continue to be taken to reform the law in this area.

Cohabitation Reform – where are we on the journey and what are the next steps?

We were delighted to welcome Associate Professor Dr Andy Hayward of Durham Law School, Durham University who has been at the forefront of cohabitation reform and is currently involved in a research project which involves a major global comparative study which reviews the degree of legal protection afforded to cohabitants in over 40 jurisdictions. Andy was also the Specialist Adviser to the Women and Equalities Committee of the UK Parliament that undertook an inquiry into the Rights of Cohabiting Partners in 2021.

What is the background in terms of reforming the law in this area?

Andy explains that there has been a natural resistance generally in respect of family law reform in the England and Wales. When we do look at reform, England and Wales have been preoccupied with other issues such as same-sex marriage, divorce reform and so many of the priorities have been focused elsewhere. In 2007 there was a Law Commission Report: Cohabitation: The Financial Consequences of Relationship Breakdown (2007).

Andy explains that in 2019 there was a survey undertaken by Professor Anne Barlow (University of Exeter) in association with the National Centre for Social Reform which confirmed the prevalence of the common law marriage myth with 47% of the population incorrectly believing they had the same rights as if they were married. That figure increased to 55% where the couple had children.

Andy was the Specialist Adviser in respect of the House of Commons Women and Women Equalities Committee Report on the Rights of Cohabiting Partners (2022). As a jurisdiction, England and Wales remains an outlier compared to some other countries, for instance, in 2006 in Scotland the law was reformed to provide for cohabitants and in Ireland, since 2010. The report aimed to update some of the evidence base and highlight the need for reform. The Committee recommended increased public awareness and the introduction of an opt-out regime along the lines of the scheme proposed by the Law Commission in 2007.

Is everyone supportive of reform?

Andy highlights the stark divide between academics and practitioners who were in support of reform whereas the public, at the time of the House of Commons Women and Equalities Committee Report, were against it.  Around the time of the enquiry there were opposition groups opposing reform on religious grounds too.

In November 2022 the Government largely rejected the Committee’s recommendations and has paused any consideration until the review of financial remedies law takes place by the Law Commission.

What is the Family Law Reform Now project?

Family Law Reform Now is a project which brings together academics, practising lawyers and policymakers with the aim of identifying and addressing key areas of reform in family law. The FLRN is led by Dr Charlotte Bendall and Dr Rehana Parveen both based at the University of Birmingham and Andy leads the Cohabitation network for FLRN.

Andy has been working with Graeme Fraser, Chair of the Resolution Cohabitation Committee.  Resolution is an organisation of lawyers and other family justice professionals who are committed to following a non-confrontational and constructive approach to resolving family issues. Resolution has had a long-standing campaign for cohabitation reform.

Andy explains that Resolution is in favour of reform to the law in this area but not in favour of the treatment between married and unmarried couples being equal. Resolution believes that there should be a bespoke tailored financial claim for unmarried couples who separate and give them access to make a low-level financial claim which will clip the harsh edges of the law which governs this area at the moment.  

What should reform look like?

Andy is of the view that it is better to have something in place than nothing at all. Many jurisdictions (such as New Zealand and Australia) have de facto regimes, for instance, if you live together for 2-3 years or have a child together you are treated as a de facto spouse and the law which applies to married couples then applies to unmarried couples. Some jurisdictions provide that there is a minimum period of living together and others adopt a more flexible based inquiry approach. Sometimes the absence of living together is not fatal provided a Judge is satisfied that a cohabiting relationship is present.

The above approach would be too much of a radical proposal in England and Wales and so the more realistic approach is to have what Scotland and Ireland have in place now which is access to the ability to make a low-level financial claim. There would be clear blue water between what cohabitants and spouses receive and this would naturally ensure marriage is prioritized. 

What’s next?

The stage is set for the law to be reformed. The Law Commission review of financial remedies law is underway and will now take priority. Sadly cohabitation law will not be considered as part of that review.

Andy emphasises the need to continue to bang the drum for cohabitation law reform and to continue to ensure we collaborate so that there is joined up thinking between academics and practitioners.

For more information about Andy Hayward click here: Dr Andy Hayward – Durham University

For more information about the Family Law Reform Now project click here: Family Law Reform Now – University of Birmingham

For a link to the interesting article “Securing cohabitation reform: building a movement and why collaboration matters” click here: Securing cohabitation reform: building a movement and why collaboration matters | Resolution