Cohabitation is rising, and so is the need for reform…
The Office for National Statistics has provided a useful reminder that cohabitation law reform should be a key focus.
It has just updated its population estimates by marital status and living arrangements, providing an insight into the changing patterns of marriage, civil partnership and cohabitation, and showing (once again) a rising trend in cohabiting unmarried couples. The figures show a rise in people cohabiting in England and Wales from 5.5 million people in 2014 to 6.5 million people in 2024.
The case for law reform to provide better protections for cohabiting couples and what that should look like has long been debated. The current government has confirmed that it will consult on the rights of cohabiting couples this year, but we are still waiting to hear from it on that. The ONS statistics reaffirm the need for that consultation to be brought forward.
Whilst married couples are afforded statutory protections for financial relief on separation, giving courts the power to divide assets based on what is fair and reasonable, considering each parties’ needs, unmarried cohabiting couples only have limited rights. Other than some financial provision for children, cohabiting couples have no financial claims, except, in some instances, in relation to property.
Often their main asset is the family home and, on separation, the couple will discuss what should happen to it and what their future living arrangements should be. This can be a straightforward discussion but, in many instances, particularly where the beneficial ownership of the property is unclear, it can lead to extremely unfair results.
If the property is jointly owned, without a clear declaration of trust specifying the extent of their shares in the property, the couple may find themselves in the uncertain, complex and costly territory of asking a court to declare their respective beneficial shares. Often the partner who is unable to fund such a costly exercise will be forced to walk away with less than they are entitled and certainly not enough to provide for their future needs.
Where the property is only owned by one partner, the non-owning partner may have no rights over it whatsoever or may have an uphill battle persuading a court that they are entitled to a share of it. This situation in particular can create incredible unfairness for a non-owning partner who has made significant non-financial contributions to the relationship over the years but who will nevertheless be left with nothing from the family home. Often a situation arises (on separation or death of the owning partner) in which the primary caregiver of the children and/or the more vulnerable partner receives little or no financial provision and is unable to rebuild their life or properly support the children.
Cohabiting couples can secure better protection in the form of declarations of trust and cohabitation agreements, which can help to provide more certainty in respect of their property rights on separation. However, many people are unaware of this or are simply not in a position to agree something like this with their partner.
Ultimately cohabiting couples are forced to rely on the law of property and trusts, which is difficult to navigate and uncertain, and in a few cases may be able to make an application under Schedule 1 of the Children Act 1989 if there are children. The position as it stands is outdated and unacceptable.
The Law Commission published its report ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ in 2007. It noted that many unmarried couples who have lived together for a certain amount of time or have children together believe that they have the same rights as married couples. Still, almost 20 years on, many unmarried cohabiting couples do not understand their financial and property rights on separation. Whilst the need for education and more comprehensible advice when purchasing properties together is necessary, the call for the law to be reformed has been growing increasingly louder.
More recently in 2022, the Women and Equalities Committee published its report “The rights of cohabiting partners”. The report noted that in 2021 there were around 3.6 million cohabiting couples in the UK and that the “lack of legal protection [for cohabiting couples] means that women, including women from an ethnic minority background and those who have had a religious-only wedding, can suffer relationship generated disadvantage”.
One of the questions in the Law Commission’s report was whether the law for cohabiting couples should be reformed at all. Now, the consensus is that it should be. That leaves the question of how, and the approach taken in other jurisdictions has been reviewed to help guide us on that. One option is to grant cohabiting couples who meet certain eligibility criteria (possibly in relation to the length of their relationship and/or whether there are children) the same protections as married couples. Some argue for an entirely separate regime for cohabiting couples. There has also been a discussion as to whether cohabiting couples should have the ability to opt-out of any regime. The current consensus, rightly, appears to be that an opt-in scheme is simply not workable and will not protect those that are most vulnerable.
Resolution and others working alongside it are continuing to put pressure on and consult with the government to reform the law for cohabitees. We must wait with bated breath for the government to take action whilst continuing the debate, raising awareness for cohabiting couples, and continuing to help our cohabitee clients receive as much support as they can under the current law.
Lauren Heathcote is Senior Associate Solicitor in our Tunbridge Wells Office.