The call to reform “out of date” cohabitation laws

In the UK, the number of couples choosing to cohabit is increasing, while marriage is steadily declining. Yet, the country’s legislation does not account for the prevalence of unmarried cohabiting couples. And, despite the popular myths and misconceptions about common law marriage, couples who live together, but are unmarried, are not afforded the same rights as married couples – regardless of how long they’ve lived together.

Campaigners say that the lack of legal recognition and protection here is outdated, not reflective of modern Britain and, ultimately, harmful, leaving couples and their children at a disadvantage when faced with the death of a partner or relationship breakdown.

In 2022, the UK government declared that it had “no plans” to reform the laws relating to financial remedy and succession for cohabiting couples and rejected proposals for reform put forward by the Women and Equalities Committee’s recent report. However, campaigners are not backing down.

The decline in marriage and rise of cohabitation

Cohabitation before marriage might have once been frowned upon, but it’s incredibly common these days. A quick look at the statistics shows that it’s only on the up, too. In fact, since 1996, the number of people cohabiting has increased by 144 per cent. What’s more, it’s the fastest-growing family type. According to ONS, since 2008, the share of cohabiting couple families has increased from 15.3% to 17.9%,

Marriage, meanwhile, is on the decline. Research from the Civitas think tank even predicts that by 2062, marriage rates will drop by 70 per cent, from one in 100 couples to one in 400. This, they say, is already being fuelled by a “structural shift in societal views of marriage.” Indeed, last year, marriage for opposite-sex couples dropped to a record low. The number of same-sex marriages, meanwhile, decreased marginally.

Research shows that the biggest fall in the number of people marrying is in the age group 25-35; in 2021, 1.2 million more people were unmarried in that age bracket than there were in 2011. Comparatively, in 1991, 2.7 million 25- to 35-year-olds were unmarried. Today’s figure is more than double.

A breakdown of the stats geographically shows that Central London, Liverpool and Brighton have the highest rate of people who have never married, while Richmondshire in Yorkshire, mid-Suffolk and Berkshire appear to be the areas with the highest rates of marriage.

Legal limbo & out of date legislation

In the UK, there’s a widespread misconception that if a couple lives together for a number of years, then they’re married under common law, meaning that they’re afforded the same rights as a married couple. In fact, a large swathe of the population believes this. According to the British Attitudes Survey, just under half (46%) of people believe in the myth of common law marriage. However, cohabiting couples have no automatic entitlement to financial support from each other or a share of assets.

Back in 2007, the Law Commission produced a comprehensive reform proposal aimed at levelling the playing field, however, the government decided to take no action.

Again in 2022, the Women and Equalities Committee released a report which recommended the introduction of remedies for cohabitants who have lived together for a specified duration of time or for those who have a child together.

These recommendations included:

• Bring in reform to family law to better protect cohabiting couples and their children from financial hardship on separation, as well as implement an opt-out cohabitation scheme,
• Give effect to the Law Commission’s proposals concerning intestacy and family provision claims for cohabiting partners,
• Publish clear guidance regarding pension schemes for surviving cohabitants,
• Review the inheritance tax regime to provide equality for cohabiting partners,
• Bring in a public awareness campaign to distinguish marriage, civil partnership and cohabitation.

However, once again, the government decided to rule out reform.

Women and Equalities Committee Chair, Rt Hon Caroline Nokes MP, called the government’s decision “deeply disappointing” and said that doing so also meant the possibility of “better legal protections” for cohabiting partners is off the table for the foreseeable future.

Nokes said that closing off the possibility relies on “flawed logic.” “Weddings law and financial provision on divorce are wholly separate areas of family law. There is no reason the Government should not prioritise law reform for cohabiting partners alongside this,” she said.

Responding to the government’s response that existing work on the law of marriage and divorce needed to be concluded before considering changes to the law regarding the right of cohabitants, Nokes said that this could “take many years.” “This response effectively kicks the issue into the long grass and risks leaving a growing number of cohabitants financially vulnerable,” she said.

Family law group Resolution, which has been campaigning for cohabitation rights for years, also shared its disappointment. Graeme Fraser, chair of Resolution’s cohabitation committee, commented: ‘The lack of rights for cohabiting couples means millions of people – often women and others in society who are vulnerable – are at significant financial risk if their relationship ends or their partner passes away.”

“Having bad laws is generally a bad thing for families. Current cohabitation laws are unfair, not fit for purpose and consign too many families to misery and dire financial hardship. It will continue to do so until it has been reformed, exacerbated by the significant numbers who continue to cohabit.”

The legal reform route

With more than half of children in England and Wales now born to unmarried parents, many campaigners believe legal reform is more imperative than ever. Speaking about this, Anna Stanworth, senior associate at law firm BDB Pitmans, said: “Concerningly, the largest reduction in marriages is in the 25- to 35-year age group, given that these are the couples who are likely to have young children together.”

“If they were to separate, they will not be treated in the same way as married couples. A separation in future could therefore leave one party, who may have given up work to look after the children, in a financially difficult position,” she added.

Indeed the protections in place for cohabiting couples are minimal. Cohabitation agreements exist, but they’re not always legally binding in England and Wales; they set out agreed intentions and arrangements concerning any property and other assets or debts owned individually or jointly following a couple’s separation. To make the agreement legally binding and enforceable, parties must ensure that it’s properly executed, both are honest about finances, ensure it’s updated when circumstances change, and each obtains separate legal advice regarding terms.

Some believe that these agreements provide enough protection, and disagree with the premise of reform in this area due to concerns over disregarding the choice of those who want to remain legally separate. Meanwhile, pro-marriage activists claim that it undermines the institution of marriage.

However, experts point out that the current law applicable to cohabitants upon relationship breakdown can be “costly, complicated and unfair.”

While it looks like the government doesn’t plan to make any changes to cohabiting rights any time soon, proponents of reform are not deterred. Resolution campaigned for years to introduce ‘no-fault’ divorce, and last year saw success with it finally becoming law in 2022 in the form of The Divorce, Dissolution and Separation Act (2020). Cohabitation rights are pegged to be the focus of the group’s next campaign.