The changing face of relationships: a call for cohabitation law reform

Recent findings from the Office for National Statistics (ONS) reveal significant changes in the relationship patterns in England and Wales. With a noticeable decline in marriage rates among individuals aged over 16 and a concurrent rise in cohabitation, the report points to a substantial shift in societal norms and relationship dynamics. These changes are not only reshaping the fabric of society but also highlighting the inadequacies in the legal frameworks governing partnerships, particularly for cohabiting couples.

Decline of marriage and rise of cohabitation

The ONS report highlights a pivotal trend: the proportion of individuals over 16 who are married has dipped below 50% for the first time. This decline is attributed to changing attitudes towards marriage, economic considerations, and evolving social norms. Simultaneously, there has been a noticeable increase in cohabitation across all age groups, marking a shift towards more fluid living arrangements. However, unlike marriage, cohabitation does not offer the same legal rights and protections, highlighting a significant gap in the legal treatment of different relationship types.

Legal challenges for cohabiting couples

Cohabiting couples face considerable legal challenges, particularly in the event of separation or the death of a partner. Unlike married couples, cohabiting partners do not have automatic rights to inherit property or assets, nor do they have legal obligations to provide financial provision to one another on separation. Married couples also obtain tax benefits whilst cohabitants do not. Property disputes arising following unmarried separations are often dealt with under 100-year-old property law legislation, along with the law of trusts, and can be complex and costly to litigate.

Disputes over financial provision for children for unmarried couples flows only from The Child Maintenance Service (CMS formerly the CSA) or, Schedule 1 of The Children Act (itself being 35 year old legislation).  There is no financial provision available (in most cases) for the carer of the child(ren) who cannot work due to their childcare responsibilities.  Nor is there any legislative financial provision available to assist with the costs of childcare.

The absence of legal protection for unmarried couples with or without children often leaves individuals vulnerable, particularly those financially dependent on their partners.

Call for cohabitation law reform

The UK stands out for a lack of specific legislation that addresses the rights and responsibilities of cohabiting partners, unlike countries such as New Zealand, Australia, Canada, and France, which do make provision.

Despite mounting pressure to introduce cohabitation law in England and Wales, the Government has rejected calls for reform.  In 2007 The Law Commission published a report recommending legislative reform regarding cohabitants’ property and finances when their relationships end, whether by separation or by death. The campaign was reignited most recently by The Women and Equalities Select Committee which called for reform to family law to better protect cohabiting couples and their children from financial hardship in the event of separation. In late 2023, the Labour Party’s Shadow Attorney General, Emily Thornberry, pledged at the Labour Party Conference that a Labour government would reform the law for cohabiting couples.

The call for reform

The ONS report found that around 3.6 million younger and middle-aged couples are living together in place of marriage. Yet most cohabitees are unaware of their lack of legal rights in their relationship and make financial sacrifices that can have a lasting and devastating impact on their future. Reforming the law in this area would provide much-needed clarity and protection for millions of cohabiting couples across England and Wales.

Addressing the legal rights of cohabiting couples is not only a matter of fairness but also essential for promoting stability and security within these increasingly common partnership types.

It’s crucial for couples intending to cohabit to seek legal and financial advice. They should consider drafting cohabitation agreements and organising their finances in a way that guarantees fairness for both individuals if the relationship ends, and to make sure their individual wishes are respected.

If you have questions about your legal rights and protections while cohabitating, contact Susi Gillespie or another member of our family law team on 020 3993 2668 or email [email protected].