Civil partnership or cohabit – which is better?

Not everyone wants to get married in a church or registry office. For many cohabiting couples, civil partnerships are far more attractive - it moves away from the idea of women being the property' of their husbands and is infinitely more acceptable to those who do not follow any particular faith.

Civil partnerships have been available for same-sex couples since 2004, yet 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. That successful challenge to the current legislation could 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 autonomy over their relationship than simple cohabitation. It means that if a partner dies, the spouse or civil partner is not left in limbo, fighting for the right to take control of everything they've built up together. Both marriage and civil partnerships tend to give partners far more legal protection in the event of death or separation, as well as offering greater degrees of stability for any children in the partnership.

Civil partnerships and marriage basically offer the same level of protection, so legally there is very little difference between the two. It really only matters whether you agree with the principles of marriage as opposed to a faith-less civil partnership.

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, your next of kin' doesn't have to be related to you by blood or marriage - that person can be designated so cohabiting couples can nominate their partner as a next of kin. Hospitals recognise a cohabitant partner as a next of kin or family, although there have been instances in the past where partners have been denied access (albeit temporarily) by a particularly officious hospital worker because they're not the legally-endorsed husband or wife of the patient.

While it's all very well to say there is technically no difference between a cohabitee relationship and a civil partnership, that is only really anecdotal. If things end up in court, then the differences become very clear indeed, regardless of personal feelings. The letter of the law states that cohabitees do not have the same rights in law as married couples or civil partners. However, it's not always the case that judges simply side with the letter of the law. The recent challenge by Charles and Rebecca is an indication of a willingness by the legal profession to judge each case on its individual merits. It is still going to take a change in legislation to make the Civil Partnership Act fair for everyone, though.

Civil partnerships - a barrier to independence?

Civil partnerships are governed by the same kind of legislation as marriages. That means in the event of a breakdown in a relationship, civil partners are still going to have to go through divorce' proceedings to untangle their lives. Cohabitees can, in theory, simply separate and sort out their own affairs without any kind of imposition by the state.

Nice, in theory. In practice, though, it doesn't work like that, and cohabiting couples who decide to split can find themselves tangled in far more legal wrangling than their married or civil partnership friends. Acrimonious separations can turn very nasty indeed, with no clear guidelines in law as to how property should be divided up, or how child support or access should be decided. Unless you've gone into your cohabitation with a large A4 binder filled with consensual agreements, you're going to need help sorting out the details.

Providing the option of civil partnerships for cohabiting heterosexual couples means that finally, there really will be equality for all when it comes to deciding how two people can live together. It gives cohabiting couples legal standing, and not just a yeah, it's okay, we're cool with you two living together' approach that can quickly unravel when things get serious in court.

Civil partnerships for heterosexual couples are a natural progression and, according to the ruling given out by the High Court back in June, should be fair and equal for everyone, including both same-sex and heterosexual couples. 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 long time for the change in legislation required to ensure equality for heterosexual couples who want a civil partnership.

If you need help sorting out your affairs or want to know more about your legal standing as cohabitees, talk to us.

Kate Lacy is a Solicitor in our Family Law Department and can be contact on 01323 434415 or by email enquiries@stephenrimmer.com