Cohabitation reform is a divisive issue

A survey released last week revealed that a significant proportion (59 per cent) of MPs favour some form of law reform for cohabiting couples and confirmed that the myth of the 'common law marriage' is alive and well. Among lawyers responding to Grant Thornton’s annual matrimonial survey cohabitation has been identified as the top area for family law reform for the last two years, but this perennial issue still causes division over what the solution should be. 

Couples who live together are not without rights altogether, but unlike married couples or those in a civil partnership, those rights are not brought together in a statute specifically designed to regulate their financial claims. Instead, couples must resort to complex land law and equity claims to resolve disputes over their home and can make claims for financial support only on behalf of any children they have. The uncertainty about outcome if a case is brought to court and the high cost of bringing these claims means that many are left without any remedy in practice.

Discussions about greater clarity of rights for cohabitants are often overtaken by the debate over whether the same legal regime should apply to cohabitants and married couples; this is both politically sensitive and not what many cohabiting couples seek. More thoughtful approaches are, however, available and Law Commission proposals stand ready to inform any proposed legislative reform. However, despite the fact that cohabitation is the fastest growing family type in the UK, successive governments have shown little appetite for taking reform forward. The Law Commission reported following a cohabitation consultation programme back in 2007, but the government in 2011 announced that it did not intend to implement proposals; it was suggested that a view should be taken once reforms in Scotland had been given a chance to take effect.

The key elements of any proposed reform are likely to centre on three main elements. The first is what claims should be possible between cohabitants; whether one person should be able to claim maintenance from the other and whether claims against the other’s capital or property should be allowed. It is often proposed that maintenance should be time-limited as a way of containing claims and differentiating between married and unmarried couples. There is also the question of whether there should be a qualifying period of cohabitation - most usually two of five year periods - before a claim could be made or whether other events, such as the birth of a child, should be a trigger. Finally, a key issue is whether there should be a default position governing financial obligations on separation unless couples opt out, or whether couples should actively opt in to any regime.

Similar issues have been central to recent debates on pre and post-marital agreements; questions arise of individual autonomy on the one hand and protection of more financially vulnerable adults and children on the other. Ironically, the current lack of a coherent legal regime for cohabiting couples means that they do have considerable autonomy over their financial arrangements. Cohabitation agreements and trust deeds dealing with property are directly enforceable in a way that agreements between spouses have not been, precisely because on divorce the court has the power - and duty - to consider the parties’ financial arrangements and in certain cases to overrule them. The reality, though, is that few couples enter into agreements. Even issues relating to property ownership persist, partly because of poor advice on purchase as to how property should be held and partly because couples choose not to make declarations of trust defining the shares of ownership. 

The low take-up of existing options means that many lawyers doubt that any new opt-in system would make a significant difference to the majority of cohabiting couples. But an opt-out regime would have to be very widely publicised with a long-term programme of education to ensure that couples, many of whom have actively decided not to enter into a marriage of civil partnership regulated by the state, are aware of the consequences of cohabitation and to have the option to make alternative, enforceable agreements.

This area of law may not be seen as a vote winner, but it is viewed as a major priority by many of the family lawyers faced day-to-day with unravelling the problems faced by cohabiting couples.