Does England and Wales need a new cohabitation law?

Those who wish to marry are free to do so in the knowledge that there are clear statutory principles for the division of assets in the event that the relationship breaks down. But it is not for everyone.

Many couples make a clear choice to avoid marriage and so far as possible retain autonomy to decide matters themselves. A cohabitation law is likely to restrict their freedom to do so. Rather than create another tier of legislation, why not spend time and money in educating and informing people of the options available to them within the current legal framework?

Muddied waters

A good solicitor or conveyancing specialist will provide advice about the various ways of buying a property. Decisions can be made as to whether to buy in sole or joint names. A trust deed or cohabitation agreement can clearly and fully set out the intention of the parties and the basis upon which the property is held. Legislation will muddy the waters and infringe the right of cohabitants to decide property issues themselves.

Supporters of a new cohabitation law are understandably concerned to protect relationships where there are children. The primary carer for children may suffer economically before and after relationship breakdown. However, society is changing. There are now increasing numbers of financially independent women and a growing number of couples who practise joint parenting. The effect is to spread the economic impact of child-rearing between both parties and to reduce the negative impact upon only one. Many, therefore, do not need support from new legislation any more than they need marriage.

In any case, cohabitation is only part of a wider debate about the obligations of parents and the level of protection for those providing childcare. The Child Support Agency is slow and often ineffective, but legislation on cohabitation will not improve that. Schedule 1 of the Children Act provides a remedy for parents with care by applications for lump sum, settlement and transfer of property orders. Carers can expect to receive such help as can be afforded from former partners to allow them to bring up their children. Such proceedings can be expensive but this would no doubt also be true of proceedings under any new law.

As far as succession is concerned, cohabitants can protect one another against the impact of death by writing wills to benefit one another. In addition, the survivor of a couple who can prove dependency retains a claim for reasonable financial provision against the deceased’s estate.

Commitment level

One of the great difficulties in this debate is the huge range of living arrangements and commitment levels among cohabitants. Many who cohabit do so only briefly and proving cohabitation and levels of commitment can in itself be extremely tricky. Those who occasionally sleep over at their girlfriend’s flat should presumably be treated differently from those in a committed long-term relationship.

However, it is unclear how new legislation would define relationships. One model proposes a minimum period of somewhere between two and five years together before cohabitation is established, but many commit financially to a relationship at the start. Others have suggested opt-in or opt-out clauses, but to be effective this would require a high level of public awareness and could hand an unhealthy measure of influence to the economically stronger partner.

Finally, supporters of marriage argue that a cohabitation law could further damage an institution already in decline. How many will feel that a cohabitation law - a sort of marriage-lite - provides them with the protection they want and opt for this as an alternative to marriage? More worryingly, there is a serious risk that the financial implications of reform might put off people from cohabiting at all – resulting in less protection for the vulnerable. A stable home, particularly where children are involved, is highly desirable and to undermine this with new legislation could bequeath an unwanted legacy.

If it ain’t broke, don’t fix it. 

Mark Heselton is a partner at Vanderpump & Sykes Solicitors