In the last decade, the Office of National Statistics has reported a 3% increase in cohabiting families in 2023. This totals 3.5 million couples cohabiting and 18% of all families in the UK.
Cohabitating couples are now the fastest-growing family type in England and Wales, which makes the need for legal support and protection even more important. However, compared to the likes of New Zealand, Northern Ireland, and Scotland, England and Wales fall behind in this area of law.
Statistics show that in 1996, just 1.5 million couples were cohabitating. This rose a significant 144% in 25 years, as in 2021, there were around 3.6 million cohabitating couples.
This could be explained by the growing acceptance of same-sex couples, who made up 0.7% of all families in 2023.
Worryingly, a large majority of cohabitating, unmarried couples still believe in the myth of a common-law marriage. This means they believe that living together for a prolonged period affords them the same legal rights as a married couple would have, should anything happen to either of them or the relationship.
However, there is still a gaping hole in the law of England and Wales to protect cohabiting couples. Frequently, we see clients having lived with their partner for decades and now having to walk away with nothing. The reform of cohabitation law remains high on the Resolution’s agenda for change.
In the absence of family law protecting cohabitees, we are left with a melting pot of other remedies that may be available.
One example of this is the law of trusts and proprietary estoppel. Alternatively, where children are involved, the child support legislation or Schedule 1 of the Children Act 1989 may assist. Or if one cohabitee has died, the Inheritance (Provision for Family and Dependants) Act 1975 may provide some remedy.
It has been often considered that the above is insufficient, and the law of England and Wales in this area is well behind that of other jurisdictions.
For example, New Zealand has the Property Relations Act 1976 with a presumption of equal sharing and provision for compensation.
The Republic of Ireland has the Civil Partnership and Certain Rights of Cohabitants Act 2010, which offers a needs-based system of protection for cohabitees over two years with children and five years without.
In Scotland, they have the Family Law (Scotland) Act 2006, which has no limits on cohabitation periods but concentrates on if an economic disadvantage has been suffered by one party and dealing with the restitution of that.
So what has England and Wales done? Currently, we provide no safety net for cohabitees, and there is public support for reform.
In December 2014, Lord Marks’ Cohabitation Rights Bill was debated in the House of Lords. It was met with opposition as there were concerns it would open the floodgates to claims and concerns it would undermine marriage.
In 2020, Lord Marks’ submitted his Cohabitation Rights Bill again for the ballot.
The Cohabitation Rights Bill would not be a kind of replacement for the remedies available for married couples under the Matrimonial Causes Act 1973. However, it aimed to set up a compensatory needs-based jurisdiction whereby the court can correct a disadvantage if the applicant has suffered an economic disadvantage and the respondent has retained a benefit.
The Bill aimed to protect cohabitees with children or those that have lived together continuously for three years or more. The court had regard for discretionary factors such as minor child, financial resources of the parties, conduct of the parties and circumstances of qualifying contributions. There was also a provision for parties to opt out of this legislation by written agreement.
Unfortunately, this law again didn’t pass, still leaving cohabitating couples unprotected. But over the past three years, there has been further discussion of reform.
I am doubtful whether the law in England and Wales will reform anytime soon. So, what is the best solution in the current climate?
Cohabitation Agreements are the only proactive step cohabitees can take when one party moves into the other’s property. They are enforceable in contract law, and it is something parties should consider.
These agreements can cover what will happen to the family home, other properties, bank accounts, debts, gifts and chattels upon separation. It can also document what contributions each party will make to the mortgage and household expenditure.
If you are a cohabitee and would like further information, please do not hesitate to contact Sousa Law.
Whether you are just moving in together and would like to proactively put a document in place to protect yourself or are going through a separation as cohabitees, our family law specialists will be able to guide you through the process.
Get in touch with us today by calling 02380 713060 or complete our online contact form, and we will call you back.
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