Cohabitation reform: a bumpy road to nowhere?

‘Slump in younger people marrying sparks calls to protect cohabiting rights,’ ran a newspaper headline in The Guardian in February. It was a little inaccurate as, in reality, individuals gain no rights on cohabitation.

But what about ‘common law marriage?’ In 2019, the National Centre for Social Research, working with Professor Anne Barlow, currently University of Exeter Law School's Director of Research and Impact, revealed that 47 per cent of the general population are under the wrong impression that cohabiting couples have a common law marriage which gives them the same legal rights as if they were married. Any legal concept of ‘common law marriage’ was abolished in England and Wales in 1753 by the Clandestine Marriages Act. 

A case for reform

Speaking at a recent conference, Professor Barlow, said: “The reality in the UK is that love and marriage no longer go together like a horse and carriage.” According to the Office for National Statistics, there were around 3.6 million cohabiting couples in the UK in 2021 – up from 1.5 million in 1996. Cohabiting couple families were the fastest growing family type over the last decade.

In its report ‘The Rights of Cohabiting Partners’ published in August 2022, the House of Commons Women and Equalities Committee found that the current law applicable to cohabitants on relationship breakdown can be costly, complicated and unfair.

 ‘Complex property law and trusts principles often require the financially weaker party – often women – to demonstrate direct financial contributions to the acquisition of the family home, while childcare and other non-financial contributions go largely unrecognised.’ As for potential claims for children, the committee was equally disparaging and described Schedule 1 of the Children Act 1989 as ‘outdated,’ adding that it mostly benefitted the children of wealthy parents and was in need of reform.

In no uncertain terms, the committee recommended the government reform family law to better protect cohabiting couples and their children from financial hardship in the event of separation. It favoured an opt-out cohabitation scheme as proposed by the Law Commission in its 2007 report on the financial consequences of relationship breakdown. The government should make a commitment, the committee said, to publishing draft legislation for pre-legislative scrutiny in the 2023-24 session of parliament.

The Commission’s report

In 2007, the Law Commission did not think that all cohabitants should be able to obtain financial relief in the event of separation. It recommended that a remedy should only be available where the couple satisfied certain eligibility requirements, had not agreed to disapply the scheme, and the applicant had made qualifying contributions to the relationship giving rise to certain enduring consequences at the point of separation. The recommended scheme would apply only to cohabitants who had had a child together or who had lived together for a specified number of years. The report did not make a specific recommendation, suggested between two and five years would be appropriate.