Belderbos Solicitors met recently with Alicia Kearns, Conservative MP for Rutland and Stamford, to discuss cohabitation rights. Here, Director James Belderbos explains why it is time for reform.
Around one in every four couples in the UK live together outside of marriage, according to latest statistics. It’s an arrangement especially popular with younger people.
What does this tell us? In simple terms, it’s an indication that society and attitudes to living ‘out of wedlock’ are evolving. Millennial and Gen Z couples are not as hung up on getting married before moving in together than perhaps their Gen X parents and Baby Boomer grandparents were. There is no longer a stigma attached to cohabitation, in many communities in the UK, at least.
However, this social trend is not in lockstep with the law and cohabitation, and Resolution, of which Belderbos Solicitors is a member, believe change is long overdue. With a new Government in situ, will we now see it?
What’s the issue with cohabitation law?
Cohabiting couples are treated differently to married couples in many areas. On separation, if a couple own property jointly, as tenants in common, for example, each partner owns a different share of the property and so the property would be divided in accordance with property or the law of trusts. In the event of death, the deceased partner’s share of the property may pass to someone else if they do not have a will explicitly leaving it to their partner.
The rights of cohabitees are even more complex in other areas. Without prior legal agreements, they are unable to:
- make medical or care decisions for their partner
- inherit their partner’s assets
- access bank accounts after their partner’s death
- obtain automatic paternal parental responsibility for children (unless named on the birth certificate)
- access several tax advantages for spouses, such as the Marriage Allowance
And when it comes to relationship break-down, there is simply no dedicated law for cohabitees in England and Wales.
In a divorce, proceeds from assets such as the family home might be divided if there is a dispute, and the needs of the parties and the children are carefully considered. When you co-habit, however, you are not covered by divorce law. Here, we see other legislation come into effect, such as trust and property law, in matters related to property, for example. There is no automatic entitlement to a share of the home and a cohabitee cannot make claims against their ex-partner’s pension. They cannot apply for spousal maintenance.
Why ‘no recognition’ is the issue
The gap in rights between married and cohabiting couples comes down broadly to one thing: recognition. The critical difference between recognising long-term cohabitation and marriage is that marriage is a legal process. To get wed, you need official documentation that provides a specific milestone at which spouses are legally bound to one another.
Cohabitation, on the other hand, is woolier. It is an ongoing process so it’s difficult to determine when, for example, this living arrangement might constitute a legal relationship.
So, if you are one half of a married coupled going through a divorce, you can expect to receive a share of the proceeds of sale of your property. If you are a cohabitee separating from their partner, a court would look at how the property is owned. Was it bought jointly or by one partner? Does documentation exist that outlines ownership? If one party bought the property, the other may leave empty-handed and homeless. The house is belonging to the person in whose name it is, or under property law.
Will a new Government usher in change for cohabitation?
So, we have a situation. In a country in which co-habitation is popular and common, the law tells those who cohabit that they have less cover than those who marry. According to family law, you shouldn’t enjoy the same rights if you cohabit as those who tied the knot. If law is supposed to be fit for purpose as a framework for society today, then cohabitation law is clearly out of step with time.
This is not a new issue. In 2007, the Law Commission made recommendations that the law for cohabitation should be brought up to date.
Fast forward to October 2023 and the Labour Party conference, and Emily Thornberry announced that Labour would reform the law for cohabiting couples. When published, the Labour Party Manifesto 2024 stated only that a Labour government would ‘strengthen the rights and protections available to women in cohabiting couples’. Was this a sign that a Bill on cohabitation rights reform would be low on the list of priorities this parliament?
Since winning the General Election in July, we have heard little from the new Labour Government on the issue. It’s early days, perhaps, but our position is very much that it is time for change. Indeed, all the main parties seem to be in favour of the reform of rights for co-habiting couples.
I met recently with our local member of parliament, Alicia Kearns, Conservative MP for Rutland and Stamford, to discuss the issue and her views are very encouraging.
After the meeting, Alicia said:
It was enormously helpful to hear from James about the difficulties existing legislation creates for unmarried, cohabiting couples. Their exclusion from many rights around finances, property and children, leaves them unprotected and vulnerable in the event of a break-up or death and makes the entire process fraught with misunderstanding and uncertainty.
"I believe we need to find a way for long-term cohabiting couples to be able to benefit from better protections in law, so it was good to discuss this with James and receive his advice as an expert in the field."
Alicia Kearns
Conservative MP for Rutland and Stamford
Our position on cohabitation reform
We support Resolution’s position on cohabitation reform, which can be summarised as follows:
A legal framework of rights and responsibilities is needed for when couples who live together (without being married or civil partnered) split up. This will provide some legal protection and secure fair outcomes at the time of their separation.
Once eligibility criteria are met indicating a committed relationship, the court should be able to make similar orders as they do on a divorce or dissolution but on a very different and more limited basis unless the couple chooses to “opt out”.
The court would have flexibility to adjust property rights. The court would be allowed to tailor provision to the cohabitants’ particular circumstances.
Awards might also include payments for childcare costs to enable a primary carer parent to work.
Cohabitants should be able to apply for maintenance to reflect the economic advantages or disadvantages caused by the relationship. Maintenance would be for a limited period to enable a cohabitant to adjust to the loss of financial support before becoming self-supporting.
These measures would go some way to achieving a more even playing field between married and cohabiting couples. In a society in which more people are choosing to live together before getting married, it is time the law changed to reflect this social trend.
Can cohabiting couples protect themselves now?
There are steps that cohabiting couples can take to mitigate some of the issues they face under the law, but they’re not all-encompassing.
For example, a valid, up-to-date will is one of the most powerful tools in the cohabitee’s arsenal – allowing one partner to leave any assets they wish to their cohabitee in the event of their death, including money, possessions and stakes in a tenants-in-common property.
Lasting Powers of Attorney (LPAs) are also excellent defences against the issues posed by cohabitation, allowing one partner to make medical and care decisions (under a health and wellbeing LPA) and financial and property decisions (under a finance and property LPA) for their partner if they lose capacity suddenly, such as through an accident or illness.
And cohabiting couples can draw up a cohabitation agreement, which records the arrangements you make with your partner when you decide to live together. It covers your, and your partner’s, rights and responsibilities in relation to your new home, financial arrangements between you both, and what would happen if you decided that you no longer want to live together.
For cohabiting couples, the legal system does what it can with the law as it stands today. There are mitigations that unmarried partners can enact to avoid being left exposed, but, in general terms, unmarried couples are at a fundamental disadvantage.
At a time when marriage is increasingly rejected by people in long-term relationships, this is a situation that must be addressed. Family law needs to be fit for purpose for the modern family.