Cohabitation law reform

Possible cohabitation law reform is often a feature of my posts, and steps towards potential reform are now being taken by the Labour government.

There is no such thing as a common law spouse in England and Wales. Couples are not treated as if they are married after they have lived together for a certain amount of time. I am continuously alarmed by how many people do not know this. The rights couples may have as cohabitees are vastly different, and very much more limited, compared to the rights married couples have upon a separation.

The current state of the law is such that it does not help some of the most vulnerable in our society – like when I had to advise a cohabitee, as they headed into an uncertain future, that due to the fact they were not married they were entitled to very little at the end of a decades-long relationship which bore children (now adults).  This is advice I gave through a pro bono legal advice clinic, through which we assist frontline organisations such as Citizens Advice by providing up to one hour of free legal advice for people who do not have the means to pay for that advice. That client, with whom I spent no more than an hour, has stuck with me. It was such an unsatisfactory piece of advice to give. The current state of the law is inadequate, and many family lawyers have been calling out for change.

In 2022, the Commons Library released a briefing paper stating that between 1996 and 2021 there has been an increase of 144% of people living in cohabiting relationships, without getting married. Approximately 3.6 million couples. ["Common law marriage" and cohabitation - House of Commons Library] 

With the cost of living increasing, more and more people are having to choose between spending on a mortgage or a marriage (there is even a Netflix show in the US!) – with many not being in a position to afford either. The culture has also shifted, people may want to check they can live with someone before they sign up to potentially spending the rest of their life with them. Some do not want to get married, they may have been married before and do not wish to do so again. 

However, Charles Russell Speechlys recently commissioned a report looking at Gen Z's attitudes towards marriage and, interestingly, the report found that “only two in five Gen Z don't want to get married”, with it being found that “just under a quarter don't like commitment (22%) or consider weddings to be expensive (22%)”. Time will tell what result this may have on the statistics of those living in cohabiting relationships.

The Law Gazette reports that the Labour government have confirmed: “that a formal consultation will be issued this year ‘to build public consensus on what cohabitation reform should look like’”.

What that reform will look like remains to be seen, and family lawyers will no doubt continue to speculate and provide input. Will it be an opt out or an opt in system? It seems very unlikely that cohabiting couples will ever have exactly the same rights on separation as couples who are married, but should they be able to make “needs-based” claims if the relationship breaks down?

What is clear to me is that there needs to be protection for people such as the cohabitee I mention above.

Prior to any reform of the law, couples who live together (but are not married) can enter into Cohabitation Agreements to set out what would happen in the event of a separation. They can be entered into at any time, but it is better if they are entered into before the cohabitation begins. These agreements are bespoke and can be adapted to suit the couples’ specific needs. In order to be binding 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.

It will be interesting to see how the potential reform unfolds, and how we can get involved - an exciting prospect for this family lawyer and no doubt many others.