Cohabitation reform

In the current landscape, cohabiting couples in the UK do not have the same legal rights as married couples or those in civil partnerships. Many believe that the notion of the ‘common law marriage’ provides them with certain protection, but such a concept is not recognised in the UK and it is a common misconception that cohabiting partners are automatically granted the same rights as spouses or civil partners.

Were a cohabiting couple to separate, under current legislation they are unable to make a claim against each other for any assets in the sole name of their ex-partner irrespective of the duration of their relationship or whether they have children together.

This leaves separating cohabitees with little legal recourse upon the breakdown of their relationship as there is no equivalent legislation for cohabitants that deals effectively with the division of assets such as property, pensions and inheritance in the way that the Matrimonial Causes Act 1973 (“MCA 1973”) does for married couples and civil partners.

The call for reform of the legal framework for cohabitants is not new and as early as 2007, the Law Commission put forward its proposal for a scheme to be introduced that would govern financial relief on separation for cohabiting couples. More recently, reform has gained traction again with Labour pledging in its 2024 manifesto to strengthen legal rights for those in cohabiting relationships. This has since been bolstered by the government confirming its plans to issue a formal consultation later this year.

The need for reform is growing, especially given how commonplace cohabiting relationships are in this day and age. The number of people not getting married has increased by 144% from 1996 to 2021 and yet the lack of cohesion between the rights afforded to married couples and those that cohabit creates a disparity in how different types of relationships are treated by the law. The purpose of family law is to address imbalances arising from the choice to have and be a family and it is argued that the legal framework should now be reviewed and extended to take into account those choosing to cohabit.

Resolution, an organisation of family law professionals, has been pushing for cohabitation reform for a number of years. It has previously discussed what the possible recommendations for reform may look like:

• To assimilate the current legal framework used for divorcing couples into the law governing cohabitation. This would mean that the factors set out at section 25 of the MCA 1973 would also be applied to determine the financial division of assets for separating cohabitees
• To create a separate model for resolving disputes between cohabiting couples upon separation. This would enable a clear distinction between the remedies available for cohabitants and those for married couples/civil partners. Such a model could, for example, be based on the length of the relationship when assessing the appropriate financial division.

It will, of course, not be an easy feat to come up with a suitable framework for cohabiting couples but the promise of a formal government consultation and guidance into what cohabitation law reform may look like is a welcome one for family practitioners.

How we can help

If you’re in a cohabiting relationship and want to understand your legal position, or need advice following a separation, our family team is here to help. Get in touch to discuss your options and how we can support you.