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Cohabitation laws: the possibilities for reform

Posted: 13/10/2023

During the recent Labour Party conference, the shadow attorney general, Emily Thornberry MP, announced that the party intends, should it succeed at the next general election, to tackle the issue of law reform for cohabitating couples. 

Proposed reform in this area is nothing new. Practitioners and supporting organisations such as Resolution have been campaigning for a review of the protections (or lack thereof) afforded to unmarried couples by the current law for many years. The Law Commission published a report in 2007 in which various reforms were recommended. In 2011 the government confirmed it did not intend to take those reforms forward.  

In 2022 the Women and Equalities Committee, a cross party group of MPs, made firm recommendations on the urgent need for reform of the law and greater education for the public on this issue. Those recommendations were not accepted by the government. Against this long history, and in the context of the ever-rising number of couples who, for whatever reason, remain unmarried, Labour’s intentions will be welcomed by many of those involved in this area of law. 

Research suggests that 46% of the population mistakenly believe that a ‘common law marriage’ provides the same financial rights as a formal marriage or civil partnership, a belief family and private client lawyers often encounter. In fact, there is no such thing as a common law marriage. Unlike married couples, cohabiting couples in England and Wales do not, under the current law, have a general right to financial provision if their relationship breaks down. They may have claims in relation to any properties that are owned jointly or (in limited circumstances) by one partner and they may have claims in relation to the support of any children of the partnership until those children grow up.  They do not, however, contrary to the beliefs of many, have any claims purely as a result of the relationship, regardless of how long it may have lasted, the level of commitment, the impact the relationship may have had on their personal financial position, or the needs they have moving forwards. 

There has been concern for some time that the current approach to unmarried couples leaves many in positions of real difficulty if the relationship breaks down, and can lead to some vulnerable people remaining in unhealthy and abusive relationships through fear of the financial implications of leaving. Despite the existence of financial support for the children of unmarried couples, it remains the case that the financially weaker party leaving a cohabiting relationship will have significantly less access to financial support than somebody leaving a marriage or civil partnership, and that can be particularly problematic where there are children.  The financial impact of parenthood (the so-called parental penalty) is often far more severe for those in cohabiting, as opposed to married or civil partnership, relationships.  

Across the world, and as close to home as Scotland, Ireland and Europe, legislation has been introduced to provide financial provision to parties on the breakdown of a cohabiting relationship, but our own legislation has remained unchanged for decades. It is not clear what form Labour Party reform would take as no detail has, as yet, been provided.  It may be that a move towards the ‘de-facto’ relationship status, as seen in Australia and New Zealand, is contemplated. In those countries, unmarried cohabitants have the same legal rights as those in a marriage or civil partnership, if they have cohabited for a minimum period of time or have a child. 

Alternatively, the party may envisage a system similar to that in Scotland, where cohabitants can, in certain circumstances, make financial claims to alleviate economic disadvantage on the breakdown of a relationship, but are not entitled to the full financial provision that would be available to those ending a marriage or civil partnership. The Law Commission recommended that financial remedies should be available to cohabitants who had a child or had lived together for a specified period, who had not chosen to opt out of the scheme, and who had made ‘qualifying contributions’ to the relationship which created an enduring benefit to the other party, or a continuing economic disadvantage to the applying party. It may be that Labour reforms would follow a similar line. 

The current law around unmarried couples has an impact beyond family law. Co-habiting couples do not have the same rights or protections as those of a married couple for succession purposes. 

If their partner dies without a will (intestate), the co-habiting partner does not have the same financial protections as a spouse. They, for example, have no automatic rights to a legacy or share of a property on intestacy, unlike a surviving spouse.

In addition, where an intestacy occurs, a surviving partner does not have the same rights to administer an estate as those that apply to a married couple. An individual may be appointed to manage the estate, who they do not like, or who has limited contact with, and understanding of, the estate and their partner’s wishes. 

Alternatively, a cohabitee may have left a will, which fails to benefit their partner or leave certain assets to them. They may fail, for example, to inherit a share of a property as it passes under a will to another individual and not directly to them. In these circumstances, it is far harder for a surviving partner to make a claim against the estate for a share of the property, compared to that of a spouse.  

Similarly, it will be interesting whether the proposed changes will also extend to providing the same tax relief that is available to married couples during their lifetimes or on death. Under current rules, gifts during lifetime and on death are exempt if made between married spouses and no relief is available for unmarried co-habiting couples. 

Although reform is by no means guaranteed, and even the specifics of the proposal are not clear, this announcement will be a reason for hope for those that have campaigned for change for so long and those that are currently left financially vulnerable at the end of a cohabiting relationship.

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