Cohabitation: an area ripe for legal reform

Justin Creed, legal director in Lodders’ Family law team, argues the urgent need for legal reform in the area of cohabitation.

There is an urban myth about ‘common law marriage’ applying to couples who live together in a stable, long-term relationship. But there is no such status in law in England and Wales.

Whilst cohabitants have some legal protections, cohabitation gives no general legal status to a couple, unlike marriage or civil partnership, from which legal rights and responsibilities flow.

Common law marriage myth

Research undertaken by the National Centre for Social Research in 2019 revealed that 46% of the public is under the impression that cohabiting couples form a common law marriage. This attitude has remained largely unchanged from the 47% who took the same view in 2005. This is despite a significant increase in the number of couples living together.

Data from the Office for National Statistics reveals that the number of cohabiting couples increased from around £1.5m in 1996 to around £3.6m in 2021, representing an increase of 144%. In 2021, 22% of couples who lived together were cohabiting rather than married or in a civil partnership.

In its 2022 report, ‘The Rights of Cohabiting Partners’, the House of Commons Women and Equalities Committee said the consequences of believing in the common law marriage myth could have profound consequences for cohabiting partners, “many of whom do not realise the reality of their situation until it’s too late.” The Committee noted that the lack of comprehensive legal protections for cohabitants on relationship breakdown meant women, including those from ethnic minority backgrounds and those who have had a religious-only wedding, could suffer relationship-generated disadvantage.

A ‘patchwork’ of legal rules

The Law Commission was previously involved in examining the financial consequences of the termination of cohabiting relationships by separation and death and delivered its report ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ back in July 2007.

The Commission reaffirmed that the concept of ‘common law marriage’ is a myth, highlighting that the belief unmarried couples who live together for a certain length of time acquire the same legal rights as married couples is false. Indeed, on relationship breakdown, cohabiting couples do not have access to special statutory remedies to deal with the financial consequences of their relationships ending. Whereas married couples on separation and divorce are entitled to apply to courts for a suite of orders dealing with the division of assets, such as property, savings and pensions, as well as ongoing support in the form of maintenance.

This is not to say that the existing law ignores cohabitants altogether. However, the law for cohabitants is based on a ‘patchwork’ of legal rules. This is, arguably, an unsatisfactory, complex, uncertain and importantly – expensive – system to rely on if couples seek redress through the courts. These rules limit the claims that can be made and certainly do not provide for discretionary redistribution of assets, sharing of pensions, or maintenance for one or the other.

The Commission reported on the result of the current law’s inadequacy as being hardship for many cohabitants on separation and, consequently, their children. This comes at great personal cost to those involved and may lead to reliance on the State in the form of claims for welfare benefits and social housing.

The Law Commission’s cohabitation proposals

The Commission took the view that there was a need for law reform regarding cohabitants’ rights but did not agree that cohabitants should have access to exactly the same remedies as married couples and civil partners.

The Commission proposed a scheme entirely distinct from that which applies between spouses on divorce which would apply specifically to eligible cohabiting couples who separate. The proposal was said to provide economically vulnerable members of society with the private means to rebuild their lives and ensure a fair division of assets on relationship breakdown.

A new scheme of financial remedies for cohabiting couples on separation was recommended by the Commission. However, it would be limited to the couple satisfying eligibility requirements, agreeing not to disapply the scheme, and the applicant having made qualifying contributions to the relationship. Simply cohabiting, for however long, would not give rise to any presumed entitlement to a share in any pool of property. Nor would the scheme grant remedies simply on the basis of a party’s needs following separation, whether by making orders for maintenance or otherwise.

The scheme would only apply to couples who had a child together or who had lived together for a minimum period determined by Parliament (but suggested within the range of two to five years) to be eligible. Awards would be based solely on contributions made to the relationship. Couples could opt out of the scheme if they wished to do so.

In March 2008, the Labour government announced it would be taking no action to implement the Commission’s recommendations until research on the cost and effectiveness of a similar scheme in Scotland could be studied. The Commission’s response on 6 September 2011 noted the government’s cautious approach. It concluded by saying: “we hope that implementation will not be delayed beyond the early days of the next Parliament, in view of the hardship and injustice caused by the current law. The prevalence of cohabitation, and the birth of children to couples who live together, means that the need for reform of the law can only become more pressing over time.”

On 6 September 2011, the government announced it did not intend to reform the law relating to cohabitation at that time. It was said then that the findings of the research into the Scottish legislation did not provide a sufficient basis for a change in the law. It also referenced the family justice system being in a transitional period, with major reforms already on the horizon. Therefore, it did not intend to take forward the Commission’s recommendations.

In April 2018 and again in November 2018, the government said it would consider how to proceed in relation to proposals made by the Commission in the context of any further reforms to the family justice system.

Leaning towards reform

Later, in its 2022 report, ‘The Rights of Cohabiting Partners’, the House of Commons Women and Equalities Committee referenced a statement from the former Minister for Justice, Tom Pursglove MP, who said he would not commit the government to cohabitation law reform. However, he did tell the Committee that he would be “very willing to engage with the Law Commission about its recommendations and explore whether they are still appropriate and fit for purpose.”

In response to the 2022 report, the government said the law relating to the relationship breakdown of cohabiting couples could not be considered outside the context of any wider reform to the law of marriage.

We are now in 2025. There has still been no government willingness to develop the law in relation to relationship breakdown of cohabiting couples. There has been no wider reform to the law of marriage in the intervening period beyond the introduction of no-fault divorce in April 2022. And the law in relation to financial claims on divorce is still based on a 1973 statute. However, all that could soon be changing.

The Labour Party’s 2024 manifesto pledged to strengthen legal rights and protections for women in cohabiting relationships. The current government said it does not share the previous government’s stance that reform must wait until work on marriage and divorce law is completed. It has stated that a formal consultation will be issued in 2025 to “build public consensus on what cohabitation reform should look like.”

Looking ahead

It appears that possible reform is now on the agenda. The UK is behind the times, with countries like Australia having dealt with the issue decades ago. In Australia, unmarried couples who have cohabited for three years are treated in the same way as those who are married. However, that is unlikely to be the scheme adopted over here. There will still be a difference between the remedies available to married couples compared with those in cohabiting relationships. Otherwise, there could be unintended consequences, whereby couples living together casually and unintentionally evolve into a relationship with major financial implications.

It is suggested that the ‘opt out’ arrangement proposed by the Law Commission may be the preferred route to avoid this.

The number of cohabiting couples will continue to increase and it is now unfair for those involved in those relationships, particularly the vulnerable, to be denied legal remedies in the event of their relationship breaking down. This area of law is ripe for change and should be moving more quickly in line with societal changes.

About the author

Justin Creed is a family law specialist and legal director at Lodders. He advises clients on a wide range of matrimonial and family law matters including financial issues, pre- and postnuptial agreements, and matters relating to children.

To discuss the rules surrounding cohabitation, get in touch with Justin here.

Cohabitation agreements

The specialist Family Law team at Lodders provides expert advice on cohabitation agreements. These agreements can provide reassurance and help cohabiting couples avoid legal disputes if the relationship ever breaks down.

Do you need a cohabitation agreement? Read this blog to find out.