Most agree that cohabitation law reform is long overdue. But currently, government priorities lie elsewhere.
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According to Office for National Statistics (ONS) data, one if four cohabiting couples are not married or in a civil partnership. And that’s up from around one in five just ten years ago.
The ONS figures reveal the most significant increase in cohabitation over that period is among those aged 25 to 29, up from 56.5% to 71.6%. These figures are also reflective of a significant decrease in marriage rates.
The myth of ‘common law marriage’
Unfortunately, the myth of the ‘common law’ wife or husband provides baseless comfort to many unmarried partners. And in reality, as a cohabitee, you have only limited legal protection, even if you have lived together for many years. For example, if your relationship ends, there is no automatic right to claim financial support from your former partner. And if your partner dies without leaving a Will, you have no automatic right to inherit from their estate.
Some argue there’s an easy fix – get married or enter a civil partnership. But that’s way too simplistic. Not only do conventions and priorities change, but marriage is simply not an option for some people.
Cohabitation law reform
Such inequities have long led to calls for law reform to provide greater recognition and legal protection for cohabitees. One idea is the introduction of the legal status of ‘registered cohabitation’, providing couples and families with legal rights similar to spouses and civil partners.
Indeed, back in 2007, The Law Commission began collecting information on the issues faced by cohabitees. But following publication, the government announced they would not take forward any of their reform proposals.
And in 2022, the Women and Equalities Select Committee of the House of Commons produced a report, ‘The rights of cohabiting partners’. But the government responded that current work surrounding marriage and divorce law reform must be finalised before attention can turn to the law surrounding cohabitation. In truth, many in government hold to the belief that reforming the law surrounding cohabitation would only serve to undermine the institution of marriage.
But many agree that the government’s response to cohabitation law reform has been wholly inadequate over many years. Indeed, we now lag far behind cohabitation rights in many countries, including Australia, New Zealand, Canada and France.
How can cohabitees protect themselves?
Until we have legal reform, there are several steps that cohabitees can take to help protect themselves and their families. These include:
- Considering a cohabitation agreement. A cohabitation agreement is similar to a pre or post-nuptial agreement. It sets out your rights and responsibilities and your agreed intentions in the event of relationship breakdown.
- Making Wills is a crucial step for cohabitees. Certainly, numerous examples of huge inequalities result from an unmarried partner dying intestate.
- Declaration of Trust. If you purchase a property together, you should seriously consider entering a Declaration of Trust, setting out your respective interests should you separate.
Should your relationship break down and you do not have in place a Declaration of Trust and/or a cohabitation agreement, the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) provides the court with certain powers to resolve property ownership disputes.
Discover more about TOLATA claims.