Possible reform for couples choosing not to "tie the knot"....

According to the Office for National Statistics there was estimated to be 3.5m cohabiting couple families in 2020. It is generally accepted that cohabitation is on the rise and the fastest growing type of family in the UK. In 2000 there was estimated to be only 1.2m cohabitating couple families in the UK and in 2010 this jumped to 2.8m.

People choose to cohabit, rather than marry, for all sorts of reasons – to test their relationship before marriage, because they do not want to get married (perhaps they have been married before and do not wish to do so again), for convenience, etc. Attitudes towards cohabitation have also changed over the years and it is now much more accepted and part of the norm.  

It is a commonly held misconception that cohabitating couples have financial claims against the other upon the breakdown of their relationship and it can come as quite a shock to learn that this is not in fact the case. Worryingly, the National Centre for Social Research published an article in 2019 reporting that 46% of people in England and Wales thought that there was a concept in law in England and Wales of a ‘common law spouse’. For the avoidance of doubt, this is not the case.

Married couples/couples in a civil partnership are much better protected financially than cohabiting couples on separation. So what can cohabiting partners do to protect themselves under the current law? One way is to enter into a Cohabitation Agreement which sets out what the parties would like to happen in the event of separation and also in the event of illness or death of one party. Couples can enter into a Cohabitation Agreement at any stage, although it is better if it is entered into before the cohabitation begins. Cohabitation Agreements are bespoke and can be adapted to suit the couples specific needs. They can include agreements on how the rent, mortgage and utilities are paid, arrangements for any children, arrangements for any pets and how properties or other assets (such as any savings in joint accounts) are to be split in the event of separation. In order to be valid a Cohabitation Agreement will need to be:

• Entered into freely and voluntarily;
• In the form of a deed;
• Validly signed by both parties; and
• Kept up to date in the event of changes, such as buying a property, having children, etc.

The Women and Equalities Committee are underway with an inquiry to examine what legislation to protect cohabiting couples upon separation could look like and how this may be introduced. The Committee are currently in the process of gathering evidence and the key questions they intend to consider are:

• Should there be a legal definition of cohabitation and, if so, what should it be?
• What legislative changes, if any, are needed to better protect the rights of cohabiting partners in the event of death or separation?
• What equalities issues are raised by the lack of legal protection for those in cohabiting relationships?
• Should legal changes be made to better provide for the children of cohabiting partners?
• Should cohabiting partners have the same rights as those who are married or in a civil partnership?
• Are there examples of good practice in relation to the rights of cohabiting partners in the UK or internationally that the Government should seek to emulate in England and Wales?

This is not the first time this issue has been considered and the Law Commission prepared a report back in July 2007 setting out some proposed recommendations, which were ultimately not taken forward by the Government. These recommendations included:

• Enabling eligible cohabiting partners to apply for financial relief on separation in accordance with a statutory scheme;
• Defining eligible cohabiting partners as a couple who (1) have lived together as a joint household for a period of between 2-5 years; or (2) have a child together either before, during or after a period of cohabitation. Including cohabiting partners who are married to, or civil partners of, or cohabiting with another party and excluding cohabiting partners where sexual activity between them would constitute a criminal offence.
• Enabling eligible cohabiting partners to “opt-out” of the statute, rather than having an "opt-in" scheme.

If you have any evidence for the current inquiry you can submit this until Sunday 4 July. It will be interesting to see what the result of the inquiry will be.