A lesser known inequality in the law – the married vs the cohabitants

As some of you might know (particularly those who are studying equity), the case of Curran v Collins shone a spotlight on the deficiencies in the law relating to cohabiting couples. Under UK law, married couples are protected in many areas, including ensuring property and belongings are shared equally between them should they ever divorce, in the absence of a prenuptial agreement. This is a stark contrast to the law concerning cohabiting couples, whereby there is no such legal provision should the relationship break down, the partner who does not own the property/belongings will have to prove that they should be entitled to a share by fulfilling multiple criteria. In the past this may not have been such a prevalent issue, however nowadays, the rate of cohabiting couples has increased dramatically, and Curran v Collins is only a recent example of the injustice that can be caused with these somewhat outdated laws. The Cohabitation Rights Bill was created to remedy some of the issues with the current law, however it was prorogued by the House of Lords in March of last year, effectively demonstrating the reluctancy of Government to overstep the sanctity of marriage.

However, a 2018 decision by the Supreme Court for a widowed mother of four in Northern Ireland has taken a massive stride towards more rights for cohabitants by setting a precedent that allows unmarried widowers bereavement payments dependant upon the circumstances. Although this applies a pressure to create a law to grant cohabitants more rights in this area, the department for work and pensions have stated that they are not necessarily obliged to change the law to suit the view of the Supreme Court. Given the volume of cohabiting couples with dependants throughout the UK, this is more likely to result in widowers taking legal action, rather than accepting the law as it is.  

What is interesting is that the Supreme Court ruled the denial of bereavement payments to be in contravention of the Human Rights Act, due to its discrimination on the basis of marriage and birth. If you know about EU law, you’ll know that it is supra national, as such the UK has/had a duty to follow it and apply it correctly, which it would appear from this ruling that it had not. The EU commission had every right to start enforcement actions against the UK, which effectively would have either forced the UK to comply informally or resulted in taking them to the CJEU. Human rights are fundamental to the EU, and such a blatant disregard for applying the directive correctly could have been taken very seriously and caused a hefty penalty fine. This of course never occurred, not only is it possible that the Commission were unaware of this, but it could also be the case the Commission exercised their discretion in choosing not to take action – and given Brexit, it is likely that within the last few years they would have chosen not to act.