The rights of cohabiting partners - a cohabitation reform

On the 4th of August 2022, the Women and Equalities Committee of the UK Parliament published their Report on the Rights of Cohabiting Partners. The inquiry was launched in April 2021 and invited views and evidence from a wide range of people and organisations.

The report sets out key recommendations for reform of the laws applicable to cohabiting partners including

• the introduction of opt-out protections
• additional inheritance provisions
• public awareness campaigns to address the myth of common law marriage.

Common Law Marriage

Let me start by saying “There is no such thing as a Common Law Marriage”. 

It does not matter how long a couple has been together or whether they have children together. It is a mythical being much like Unicorns but the public belief in its existence is a significant problem particularly given that those who believe, expect to be afforded some protection or claim as a result in the event of relationship breakdown or death.

In England and Wales, couples who are in a relationship have choices as to how and whether they wish for that relationship to be recognised; Marriage, Civil partnership and Cohabitation.

In general terms, for a couple to be considered to be married, they must have complied with the rules in the country where they were wed for a legally recognised marriage. The requirements may vary from country to country. A civil partnership is an option available to same-sex couples who do not wish to be married but still wish their relationship to be legally recognised. Like marriage, there are rules that need to be followed for it to be legally recognised.

Cohabitation

Cohabitation, in contrast to Marriage or civil partnership, is simply the act of two people living together in the same household and who have a sexual relationship. It is a definition that applies equally to opposite or same-sex couples and there are no formalities that have to be observed for a couple to be considered as cohabiting.

On a day-to-day basis during the course of a happy relationship, the distinction between each of these options may have little relevance. However, should the relationship break down or either of the couple die, then the implications of the differences are significant.

If a couple who are married or in a civil partnership separate, the law operates to provide a mechanism which allows the financial arrangements to be addressed fairly taking into account all the circumstances of their situation. 

It does not matter whether property or assets are in their joint or sole names as all assets are considered. There is a focus on dividing the assets built up during the marriage or civil partnership and a starting point of equal division but with the ability to refine the outcome to consider differences in things such as needs or contributions.

For those couples that are simply living together, the legal position is significantly different. For those who have no children or whose children have grown up, the law offers very little remedy. 

When considering the financial aspects, the focus will be the ownership of property and very often the right to force a sale or to receive a share of the sale proceeds will be determined by the decisions made at the time that the property was purchased. Ie: whether it is in joint names or one parties sole name and also the extent of each person’s interest. 

There is some scope to claim that the legal ownership does not reflect the rights in relation to the property but the claims in this regard are complex and fraught with risk as well as extremely costly. 

The law in this regard is strict in its interpretation offering little to no discretion to reflect the complexities of relationships or the differing roles that a couple might have taken in contributing to their relationship. By way of example, for couples who are divorcing or dissolving their civil partnership, their contributions as breadwinner or homemaker and child raiser are considered as being equal. That is not the case with cohabiting couples with the focus instead on financial contributions.

Where a cohabiting couple who are separating has children, the current law provides a little more assistance however, it still falls far short of the remedies that are available and principles of fairness that apply to those divorcing or dissolving their civil partnership as it is limited to meeting the needs of the children during their minority.

Couples who want to cohabit and not get married or enter a civil partnership do retain the ability to agree on how to regulate their financial affairs and have the ability to set that out formally and legally with declarations of trust or cohabitation agreements and would be wise to do so. However, most don’t. This reluctance to formalise arrangements is clear. 

The human race when it comes to new relationships are eternally optimistic. No one enters a relationship expecting it to fail and we are expected to trust our partners absolutely. It would also be fair to say that discussions of this nature are not going to be considered romantic.

Possible Reforms and the Recommendations of the Report

Having highlighted the ongoing misconception and belief in the mythical Common Law Marriage, it was recommended that there be a public awareness campaign that highlights and explains the differences between marriage, civil partnership and cohabitation.

Although a public awareness campaign is a good thing, the reality is that it will not make much of a difference. I and other members of the legal profession have sought to raise awareness of these issues for years. Awareness is also not likely to have much impact on all the other reasons why cohabiting couples choose not to have formal agreements to regulate their relationship.

What is needed is true reform and whilst some responses to the enquiry called for an identical provision that is available on divorce or dissolution of a civil partnership, this is not likely to happen. 

In this respect, there remains a clear desire to preserve the special status of marriage and civil partnerships but also to retain the ability for couples to choose how they want their relationship to be recognised in the eyes of the law. Instead, the recommendation of the Committee was to introduce an Opt-Out cohabitation scheme as had been previously proposed by the Law Commission in 2007 although they also recommended that those proposals be reviewed to consider if they needed updating.

The recommendations of the 2007 report were for a separate legal scheme to apply to cohabiting couples who satisfied certain eligible requirements such as having a child together or who had lived together for a minimum number of years. It would only apply to couples who had not opted out of the scheme. It was also recommended that any applicant must show that they had made qualifying contributions to the relationship giving rise to enduring consequences at the point of separation.

Whilst changes to the laws surrounding cohabiting couples would be welcome, there remains a long road ahead for these to become a reality and nothing is guaranteed. Whilst the committee called upon the government to commit to making change, who knows when or if they will do so.

Until then, we must work with the current legal framework by raising awareness of the issues and choices applicable to cohabiting couples and continuing to provide help and support to those facing relationship breakdown. 

At Birkett Long LLP, our family solicitors are able to provide specialist advice on your circumstances, whatever your relationship status. For more information as to how we can help you, we offer a free 15 telephone consultation and I can be contacted on 01206 217305 or by email [email protected].