Should The Law on Cohabitation Be Reformed?

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 14th November 2023

Society has changed. Marriage is no longer the only and obvious choice for couples and instead, many couples are cohabiting. Despite remaining popular, the marriage rate halved between 1991 and 2019 and is at its lowest point since records began.

should-cohabitation-law-be-reformed

Although this may be a real positive in the landscape of love, you may be aware that cohabiting couples are not offered the same protections when they separate as married couples.

In this article, we’ll weigh up the arguments for reforming cohabitation law and dive into why recent calls to the Government were rejected. We’ll also address some of the myths on cohabiting and address the future of cohabitation law.

Cohabitation statistics 2023

Cohabitation rates have grown much faster than marriage rates have declined, demonstrating that more couples than ever before are deciding to cohabit instead of following the traditional route of marriage.

The number of cohabiting couples has grown from 1.5 million in 1996 to 3.6 million in 2021, a whopping increase of 144%.

That’s 1 in 5 couples, with a predicted rise to 1 in 4 by 2031.

According to ONS figures, cohabiting is the fastest growing family type in the UK. In fact, the number of cohabiting couple families continues to grow faster than married couples and lone parent families, at an increase of 25.8% over the decade between 2008-2018.

When people are looking for family law assistance today, they are increasingly needing advice on cohabitation laws.

Cohabitation law reform proposals

The Government recently rejected proposals to overhaul cohabiting laws with fresh legislation. 

In August 2022, the Women and Equalities Committee called for a reform to the current legislation. In the report, The rights of cohabiting partners, the committee pushed for a reform to family law in England and Wales to protect cohabiting couples and their children from the financial impacts after separation.

The Government responded in November 2022, stating that ongoing reform to marriage and divorce law needs to be completed before it can address potential changes to the laws around cohabiting couples.

The Government expanded on this view by confirming that it does not plan to extend the inheritance tax position of married couples and civil partners to cohabiting couples.

Check out our article on the legal differences between married couples and those in a civil partnership, if you’d like to know more.

The problem with cohabitation law

The general view in the legal community is also highly critical of the current legislation.

So, what is the problem with the current law? 

Few protections

As the law stands on the breakdown of a cohabiting couple’s relationship, the separated partners have few protections in place. With automatic protections missing, separating cohabiting couples need to resort to interpreting property law (which can be complex) to split their assets in a fair way.

These legal limitations have forced an increasing number of couples to enter into cohabitation agreements, a legal agreement that sets out the rights and responsibilities of each partner, before moving in together. Unfortunately, a significant number of couples may be unaware of this practice, due to a lack of knowledge about cohabiting couples’ rights in the public. 

No automatic rights

On a political level, the Women and Equalities Committee also highlighted in their report that the partner who is worse off financially has no automatic rights to the family home in relationship breakdowns. As mentioned, they have to make do with complex property law and insufficient child support laws.

Ethnic minority discrimination

Additionally, the committee raised the issue that the current laws mean women from ethnic minority backgrounds can be adversely affected by relationship breakdowns, especially those that have a non-legally binding religious wedding.

Caroline Noakes, the chair of the committee said:

"It is deeply disappointing that the Government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future.

In doing so it 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.”

It appears that the Government is reluctant to promote the rights of cohabitants, seeing it as reduction of the prominence of the marriage institution in society.

The myth of common law marriage

The reason the current legislation can be so damaging to cohabiting couples, is the belief that there’s no need to arrange their finances. This is because they are protected by being Common law spouses. This is not the case.

The myths of common law marriage are:

  • Common Law Marriage Is Automatically Recognised: One common myth is that simply living together for a certain period of time automatically creates a common law marriage with the same legal rights as a formal marriage. In reality, common law marriage is not recognised in all areas, and even where it is, specific requirements must typically be met.

  • A Specific Duration of Cohabitation Creates Common Law Marriage: Some believe that a certain number of years living together automatically results in a common law marriage. The time required varies by location, and it is not the only factor considered in common law marriage recognition.

  • Common Law Marriage Protects Property Rights: Another myth is that common law marriage guarantees property and financial rights similar to those in a formal marriage. While common law marriage may provide some legal rights, these rights are usually more limited compared to formal marriages.

  • Common Law Marriage Is Easy to Prove: People often assume that it's easy to prove the existence of a common law marriage. However, establishing a common law marriage typically requires more than just living together; it often involves demonstrating mutual intent to marry, joint finances, and public recognition of the relationship.

Advice for cohabiting couples

  1. Understand the Legal Status: Research and understand the legal recognition of common law marriage in your area. Laws regarding common law marriage can vary significantly from one place to another.

  2. Consider a Cohabitation Agreement: To protect both parties' rights and interests, consider creating a cohabitation agreement. This legal document can outline how property, finances, and other matters will be handled in the event of a breakup or other life changes.

  3. Be Open About Finances: Discuss and be open about financial matters. Decide how you will share expenses and manage finances while cohabiting. This can help prevent misunderstandings and conflicts.

  4. Plan for the Future: Discuss your long-term goals as a couple. This includes issues like marriage, children, and property ownership. Knowing each other's intentions and expectations can help you make informed decisions.

  5. Update Wills and Beneficiaries: Ensure your wills, life insurance policies, and other important legal documents reflect your current circumstances and beneficiaries.

  6. Consult Legal Professionals: If you have concerns or questions about your legal rights and responsibilities while cohabiting, consider consulting with a family lawyer or legal advisor who specialises in family law. They can provide guidance tailored to your specific situation.

The extent of these myths is widespread. The Centre for Social Research found that 46% of people surveyed believed cohabiting couples have a common law marriage, with assumed legal protections. 

The Government have long been aware of the issue, launching a campaign in 2004 with little success in changing public opinion. The Living Together campaign, clearly made little impact.

The future of cohabitation law and possible reforms

If you’re in a cohabiting couple, have no fear! There is some good news.

Some of the recommendations in the report by the Committee for Equalities and Women were:

  • A new public awareness campaign should be launched on the distinctions between marriage, civil partnership and cohabitation

  • The Government should legislate for an opt-out cohabitation scheme as proposed by the Law Commission

  • Cohabiting partners should have the right to inherit from their partners in the result of death, concerning intestacy rules, which determine who should inherit when there’s no will

The report was also prefaced by the Committee urging the Ministry of Justice to conduct a fresh review into the recommendations to see if they need updating.

The Committee also supported the idea of an opt-out cohabitation scheme, which was proposed by the Law Commission. This would give couples the opportunity to avoid the legal processes created to support them, if it didn’t apply to their circumstances.

Additionally, recommendations were given to ministers to review the inheritance tax rules to ensure they’re the same for cohabiting partners as those enjoyed by married couples and civil partners.

In terms of pensions, it was recommended that the Government post updated guidelines on pension schemes. Specifically, updates are needed on how pension schemes treat surviving partners when they claim a cohabitant’s pension.

Finally, as there is not currently a single agreed-upon definition for cohabitants, were this to be included in future legislation reform, cohabitants would have a clearer idea of where they stand.

Support for cohabitants

For further help and advice on cohabitation law and cohabitation agreements, contact our legal assessment team to get a free quote and speak to our expert family solicitors within 48 hours.



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