Calls for reform in cohabitation law

Family lawyers have had cohabitation reform on their agenda for many years.

The prevailing belief in the existence of the common law marriage, combined with financial insecurities and disputes arising if a cohabiting couple separates, or one party dies, have all contributed over time to the need for reform in this area.

This has primarily been driven from within the legal sector, as family lawyers are still dealing with clients who are unaware that there is no formal structure or legal framework in place for cohabitees.

Currently, cohabitees have minimal rights, and are instead reliant on complex laws relating to property trusts. This means that in the event of a relationship breakdown, or the death of one party, challenging situations and disputes can arise as there are limited to no financial protections in place.

At Stowe Family Law, we recently conducted a survey about cohabitation laws. Perhaps not unsurprisingly given what family lawyers have seen for many years, 45 per cent of respondents stated that they believed that couples who live together have the same rights and protections as married couples. With cohabitees continuing to be the fastest growing family type in the UK, these ideas need to be challenged, and a single, clear legal framework implemented.

Once informed that cohabitees do not currently have any legal protection upon the relationship breakdown or the death of one partner, an overwhelming number of survey respondents (92 per cent) said that protective laws should be in place.

With a general election looking increasingly likely to happen later this year, there is a possibility that cohabitation reform may take a seat at the table.

Potential Systems in Practice

What cohabitation laws should look like has been an area of debate for some time, dating back to the Law Commission’s proposal in 2007. Cohabitation reform was again shelved in November 2022, despite the Women and Equalities Committee released their report calling for remedies for cohabitants.

Whether cohabiting couples should be eligible for the same rights and protections as married couples, or have their own set of laws, has played a key part in discussions. In response to Stowe’s survey, a fifth of people said that cohabiting couples should have some rights but not exactly the same as those enjoyed by married couples.

This raises several questions about what rights cohabiting couples should have and where the line should be drawn. Attempting to offer a halfway house may appease some, keeping marriage as a unique relationship choice and recognising its importance in society. However, it may add unnecessary complications and blur boundaries.

The other element to conversations is at what point a couple should be eligible. Worryingly, a quarter of respondents to the Stowe Family Law survey said that cohabitees should have their legal rights enforced immediately upon moving in together. This would pose considerable issues, with individuals being put off, and essentially putting their life on hold over fear of the potential consequences, or even pushing to move in together quickly in order to potentially profit from their partner financially. Long-term financial ramifications would likely ensue, and the financially weaker party (stereotypically the woman) could be put at risk.

In other countries, couples must meet specific criteria in order for protective rights to apply to them. For example, Australia has adopted a system, where, since 2008, ‘de facto’ couples (ie couples living together as married or civilly partnered) are allowed to make financial claims after separation, if their cohabiting relationship lasted at least two years or there was a child of the relationship. Once the criteria are met, the laws are automatically applied, and couples must ‘opt-out’ of their entitlements by making a financial agreement.

In Scotland, some rights for cohabiting couples have been in place since 2006. The system there is not based on length of time a couple has been living together, although a court would take the cohabiting period into consideration. The qualifying criteria for financially claiming after a cohabiting relationship breakdown is living together as if they are husband and wife/in a civil partnership.

However, any potential laws and protections for cohabiting couples will need to have clearly defined boundaries. This could be through the introduction of an ‘opt-in’ system (as opposed to the ‘contract out adopted in Australia). 86% of respondents to Stowe’s survey though that cohabitation laws should be an active choice.

An opt-in system could be very interesting as it might see Cohabitation Agreements becoming legally binding. Hypothetically, a cohabiting couple in this system would only be eligible for legal protection if there was documentation in place detailing their relationship and what would happen to finances, property, assets, children etc. should the relationship break down. It would also potentially remove the need for complex laws like TOLATA, creating one cohesive set of legislation. However, an opt in system is likely to be less beneficial for women.

Family lawyers are seeing an increasing number of couples having the more ‘unromantic’ conversations around finances, property and what happens if the relationship ends. They are approaching us for advice on cohabitation agreements, which in the past have been assumed to not be worth the paper they are written on. Although not legally binding, an agreement that is drawn up in reasonable terms, which each party has had independent legal advice on its effect, is more like to be upheld by the court in the event of a dispute on separation. With these types of agreement, there is in effect a way to ‘opt-in’ so to speak, so that people can make a choice consciously about how to deal with their financial affairs while cohabiting.

If Cohabitation Agreements were to become legally binding, this could be the way in which couples could opt-in to legal rights. There would still be a choice as to how the couple wants to manage their relationship, with the various legal implications associated.

The flip side of the coin

Of course, as with any prospective legislation, there are arguments against.

People may not want to get married for the very reason of protecting their assets. As the law stands, not getting married is one way of doing this. This is often seen in situations where it is a new relationship following the breakdown of a marriage where they may have already had to divide their assets, or they want to protect their assets for the benefit of their children from a previous relationship. Or more simply, one party is wealthier than the other, whether through their own personal endeavours or via family wealth, that they do not wish to legally have to share their wealth with a spouse if it were to end. Marriage is also a personal preference, and lifestyle choice in this day and age.

Another consideration is the impact of any cohabitation legislation on domestic abuse victims. At the Labour Party Conference in October 2023, MP Emily Thornberry used her speech to highlight how the current lack of legal protection for cohabitees is forcing victims of abuse - primarily women - onto the street. She argued that "no woman should be forced to get married or stay in an unhappy relationship just to avoid ending up on the street."

However, cohabitation laws could be used to abusers’ advantage, particularly if an opt-in/out system were to be introduced.

The government will need to consider the extent to which any cohabitation reform could be used for abusive purposes and put appropriate measures in place to prevent abuse and provide support to victim-survivors.

Ultimately, despite ongoing demand from the legal sector and calls for change from the public, cohabitation reform still feels a way off. The delivery of any change in law would need to be done carefully, clear boundaries set and robust criteria in place.