What rights do cohabiting couples have on breakdown of the relationship? Law Commission proposals for reform around cohabitation still not implemented.
The number of people who choose to live together or ‘cohabit’ rather than marry or enter into a civil partnership has increased by a staggering 144 per cent between 1996 and 2021. There have been moves for legal reform around cohabitation for some years, with some people wrongly assuming that cohabiting couples enjoy the same financial status as married couples or civil partners and finding out to their cost that they don’t.
In 2021, 22% of couples who lived together were cohabiting rather than married or in a civil partnership – the percentages differ between same-sex and opposite sex relationships.
Although there are some legal protections afforded to people who choose to cohabit, such as protection form domestic abuse, there is no such thing as a ‘common law marriage’ and when it comes to the finances, cohabiting couples do not have the same legal status as married or civil partners. Sadly, many people don’t know this and when their relationships break down, they are left in difficult financial positions.
Proposals for reform around cohabitation
Back in July 2007, the Law Commission published a report considering the financial consequences of ending cohabiting relationships. The Commission recommended the introduction of a new scheme of ‘financial relief on separation’.
The new scheme would look at what it described as ‘qualifying contributions’ – the contributions which each partner made to the relationship. These might not necessarily be monetary; for example, they could be that one partner took on the bulk of childcare. To be eligible, cohabitating couples would need to have had a child together or to have lived together for a minimum period. Couples could also choose to opt out of the scheme in writing if they chose to.
Delays to reform around cohabitation
In March 2008, the Labour Government announced it would be taking no action to implement the reform around cohabitation, delaying the Law Commission’s recommendations to ‘see what happened’ when similar schemes were implemented in Scotland. In April 2018, the May Government said that it wanted to wait and see best to proceed, if at all, “in the context of any further reforms to the family justice system”.
Another, separate Law Commission report from 2011 recommended that unmarried partners should have the right to inherit after each other’s death under the intestacy rules, without having to go to court. This has not been implemented either.
Women and Equalities Committee inquiry
On 4 August 2022, the House of Commons Women and Equalities Committee published its report on the rights of cohabiting partners. The report recommended that family law should be reformed to better protect cohabiting couples and their children from financial hardship in the event of separation; it also recognised that marriage still holds an important social and religious status in England and Wales.
The Government responded by saying that the existing work on the law of marriage and divorce must come to an end before any new law changes in respect of cohabiting couples could realistically be considered. The Law Committee’s calls to implement both the 2007 and 2011 recommendations were rejected.
What this means for cohabiting couples
The uncertainty and delay around any potential financial regulation of cohabitation means that couples who choose to live together without marrying or a civil partnership need to take care of their finances from the beginning; unlike divorce, current law contains very little provision for relationship breakdown between them. For this reason, some couples choose to create a ‘cohabitation agreement or living together agreement’ when they start living together which sets out what they want to happen if the relationship ends.
Parties are encouraged to take legal advice on the terms and intended effect of any proposed agreement. As the government have not yet implemented or accepted the need for change in the law, cohabiting couples continue to have few rights regardless of how long the relationship. If you are considering living with someone or are already do so, then ensure you know your rights and discuss what you both understand the other will be entitled to – or not as the case may be.
If you’re looking for advice on living together/ cohabitation agreements or are separating after living with someone or need help with any aspects of family law, contact Vanessa Gillbanks at Gillbanks Law and she will be delighted to help.
Common law marriage and cohabitation – research briefing