The Rights of Cohabiting Couples and Why the Law Needs Reform

In 2021, there were 3.6 million cohabiting couples compared to only 1.5 million in 1996.  Many of these couples incorrectly believe that they are in a ‘common law marriage’ even though no such concept exists legally.

Current Law

Cohabiting couples currently have very little legal protection when they separate.  There is no automatic right to one another’s assets, income or pensions and any property will be divided in accordance with land law or trust law regardless of their status as a former couple.

There is slightly more protection for cohabiting couples who have a child together. The child maintenance service (CMS) has primary control for assessing and enforcing child maintenance.  The court has residual powers to make financial provision for the benefit of children in relation to higher earners or if there is a child with special needs.

If one party is left with insufficient assets to rehouse themselves and the children post-separation, Schedule 1 of the Children Act 1989 can provide additional assistance.  Schedule 1 was intended to make limited financial provision for the children of unmarried parents.

The range of financial laws the court can make when a child is aged under 18 are as follows: –

• Periodical payments
• Secured periodical payments
• Lump sums
• Settlement of property; and
• Transfer of property.

It is also possible to apply to court for interim orders such as interim maintenance, legal services orders and interim funding for legal costs under Schedule 1.

Schedule 1 is intended to be used as a measure while the children are in their minority to provide for them financially.  It is therefore likely that any assets would revert back to the financially stronger party upon the children reaching the age of 18.

Graeme Fraser, Chair of Resolution’s Cohabitation Committee said “the lack of rights for cohabiting couples has seen millions of people – often women – at significant financial risk if their relationship ends or their partner passes away.  Now is the time for ministers to finally grasp the nettle and reform laws to ensure cohabiting families have better legal protection.”

Calls for Reform

There have been calls for better legal protection for unmarried couples, proposing that a scheme outlined by the Law Commission 15 years ago be put into action.  This scheme is proposed on an opt-out basis, meaning those who do not wish to participate would have to take steps to remove themselves from this, and is said to provide the economically vulnerable with private means to rebuild their lives and ensure a fairer division of assets should the relationship breakdown.

The scheme would apply to any cohabitants who have a child or have lived together for a specified number of years, with suggestions of 2 years or more being made.

However, last year the Government rejected the calls for reform, stating that existing work on the law of marriage and divorce must conclude before it could consider changes to the law in respect of the rights of cohabitants.  The Women and Equalities Committee Chair Caroline Nokes stated that it is “deeply disappointing that the Government has closed off the possibility of better legal protections for cohabiting partners” and criticised the “flawed logic” of dealing with the laws surrounding weddings and financial provision on divorce first.

As a small step in the right direction, the Government did partially accept the recommendation to conduct a public awareness campaign highlighting the legal distinctions between marriage, civil partnerships and living together as cohabiting partners.  They agreed with concerns that so many people still believe in common law marriage and therefore have committed to taking further action to consider the best ways to raise awareness about this issue. Nearly a year later nothing much seems to have changed and separating couples are in the same position as before.  This is an area of law that needs reform.

Speak to our Family Law experts

IBB Law are on top of all changes to the law affecting unmarried couples and are able to advise on your rights upon a breakdown of the relationship or the benefits of entering into a cohabitation agreement at the commencement of a relationship.

Jessica Jupp is a Senior Associate within the family team and can be contacted on 01344 294135 or jessica.juppibblaw.co.uk