Which is better, civil partnership or cohabit?

Not everyone wants to get married in a church or registry office. For many cohabiting couples, a civil partnership is far more attractive – it moves away from the concept of women being the ‘property’ of their husbands, and is often far more acceptable to those who either do not consider themselves as traditionalists or do not follow any particular faith.

Whilst civil partnerships have been available for same-sex couples since 2004, they are still not available for heterosexual couples who cohabit. In June the legality of denying heterosexual couples the right to have a civil partnership was challenged in the High Court by Charles Keidan and Rebecca Steinfeld.  Much to everyone’s surprise, the court agreed with them that the Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights, and discriminated against heterosexual couples. This successful challenge to the current legislation may mean that civil partnerships for heterosexual couples could become a distinct possibility. But is it a wise choice; or is it better to remain as cohabitees?

Why is cohabiting a problem?

Marriage and civil partnerships give couples far more legal status, and therefore protection, to their relationship than simple cohabitation. Unlike cohabiting couples, if a partner of a married or civil partnership couple dies, the surviving spouse or civil partner is not at risk of being left in limbo, fighting for the right to take control of everything they have built up together, in the event that their husband/wife/civil partner has failed to make adequate provision for them in this regard in their will. 

Civil partnership and marriage essentially offer the same level of legal protection, and therefore it is really only the principles of marriage as opposed to a faith-less civil partnership that differentiate them.

However, cohabitation is becoming increasingly accepted as an alternative to marriage or civil partnership relationships. The only difference is that a cohabitee relationship has not been ‘endorsed’ legally; for example, cohabiting couples have to nominate their partner as next of kin, as opposed to family members/blood relatives who are automatically considered as such. Hospitals do now recognise a cohabitant partner as a next of kin, although there have been instances in the past where partners have been denied access (albeit temporarily) by a particularly officious hospital worker because they are not the legally-endorsed husband or wife of the patient.

While it is all very well to say that there is technically no difference between a cohabitee relationship and a civil partnership, in reality this is only anecdotal, especially on the breakdown of a relationship when matters can end up in court.  At that point, the legal differences between these two forms of relationship become very clear, regardless of personal feelings and arguments as to what is morally right or wrong.  The letter of the law states that cohabitees do not have the same rights as married or civil partnership couples. However, it is not always the case that judges simply side with the letter of the law, and the recent challenge by Charles and Rebecca illustrates that there is a willingness on the part of the legal profession to judge each case on its own individual merits. However, a change in legislation is still required before the Civil Partnership Act can achieve fairness for everyone.

Civil partnerships – a barrier to independence?

Civil partnerships are governed by the same form of legislation as marriages. This means that, in the event of a breakdown in a relationship, civil partners still going to have to go through ‘dissolution’ proceedings to dissolve the relationship and their financial claims arising from it.  In contrast, cohabitees can, in theory, simply separate and sort out their own affairs without any kind of imposition by the State.

Whilst in theory this sounds easy, in practice it doesn’t always work like that, and cohabiting couples who decide to separate can find themselves entangled in equally, if not more, legal wrangling than those going through divorce or civil partnership dissolution. Acrimonious separations can, at times, turn very nasty with the law in relation to how property should be divided in such circumstances being far from straight forward.  Therefore, unless you have entered into your cohabitation having sought legal advice at the outset and having entered into a Cohabitation Agreement or, failing such advice, with a large A4 binder filled with consensual agreements, you are likely to need help sorting these issues out.

Providing the option of civil partnerships for cohabiting heterosexual couples would hopefully mean that there would finally be equality for everyone when it came to determining financial and other issues following the separation of such couples, as well as providing them with the benefits available to married couples in terms of legal recognition and tax benefits.

Civil partnerships for heterosexual couples are a natural progression and, according to the ruling given out by the High Court back in June, should provide fairness and equality for everyone, whether they are in a same-sex or heterosexual relationship. However, the challenge to the Civil Partnership Act 2004 has only just begun, and while Charles Keidan and Rebecca Steinfeld’s success in the High Court has forced the judiciary to look again at the legality of the Act, it could take a some time before there is an actual change in legislation to provide such equality.  

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