Decades of legal inaction have left millions of cohabiting couples in England and Wales “dangerously exposed”, a specialist family barrister has warned, and legal professionals should take matters into their own hands when advising clients.
Arlene Small (pictured), a specialist family barrister and head of the family team at The Barrister Group, says “the legal fiction” of protection for cohabiting couples frequently “costs couples everything”, and she urges legal practitioners to act now when advising on key issues.
“They believe that years of shared life, shared property and shared children afford them the same protections as marriage,” Small said. “They are wrong. And when those relationships end, the consequences can be devastating.”
According to a 2022 House of Commons Women and Equalities Committee report, there were around 3.6 million cohabiting couples in England and Wales in 2021. With cohabitation now the fastest-growing family structure in the country, that figure is likely to have grown.
But Small says the legal framework “has barely evolved in decades” to keep up with the increase, leaving couples with no automatic right to maintenance, no pension sharing, and no property adjustment orders of the kind available on divorce.
She explained: “In the mind of the cohabiting couple, they are as good as married. But when the cohabiting relationship ends, the law is really only interested in ownership. It doesn’t look at how you’ve invested, whether you’ve had children together, or what you have sacrificed to be with your partner. That’s not what the law looks at.”
Separating cohabitants currently have two routes available: claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), and applications under Schedule 1 of the Children Act 1989.
Small is candid about the limitations of both: “Litigation under TOLATA is incredibly expensive, and incredibly uncertain. It’s difficult to predict the outcome for our clients. It’s exhausting for a lot of our clients because it goes on for such a long period of time.”
Schedule 1 of the Children Act, she adds, focuses entirely on the child’s needs. “These claims can still create real hardship for the primary carer, not just because there’s no provision made for them, but also because you have got to be able to demonstrate that the other former cohabitee has the resources and the means to satisfy the claim. Many claims fall at that hurdle.”
In March, the government reconfirmed plans to consult on cohabitation reforms this spring, calling it “a matter of utmost importance”. As yet, no details have been announced.
According to Small, amongst the questions the consultation will address is whether cohabiting couples should have to opt in or opt out of any new provisions, whether a minimum cohabitation period should apply before a claim can be brought, and whether pension sharing should be considered.
“Central to all of this is the concept of relationship-generated disadvantage: that a partner who sacrificed career, income or pension for the sake of the relationship should have a legal remedy when it ends,” she said.
“If somebody did give up work to raise children, that would be a way of putting yourself into that category. Or if a relocation has taken place and a person has given up a high-paying job for a lower-paying one, or sacrificed the ability to contribute to their pension. Those are the sorts of things that would probably come under the category of relationship-generated disadvantage.”
Small argues the legal profession does not need to wait for reform and says they are already well placed to act when advising clients.
For conveyancing solicitors, she suggests, “it might be worth having a discussion with your clients as to how the property is going to be held. Joint tenants, tenants in common, equal shares, unequal shares, depending on the contributions. And should this be recorded formally, perhaps as a declaration of trust at the point of purchase?
“Is it glamorous or sexy to talk about declarations of trust when people are buying property? Probably not, but it’s a lot cheaper than litigation that might follow if that conversation is not had.”
She makes the same case for cohabitation agreements, urging lawyers to frame them differently for clients.
“Frame the agreement as empowerment, not compromise. Knowledge is power in situations like this. And what we don’t want is our clients coming back to us a year or two down the line saying, why didn’t you tell me that this could have happened?”
“Prevention is better than a cure. When we’re working with our clients, we’re not just working for them when things go terribly wrong and disaster strikes. We also want to be working for them in advance to try and avert and avoid those pitfalls, and hopefully avoid costly and lengthy litigation.”
Small concluded: “Reform is coming. The only question is how long it takes. Scotland has had equivalent protections in place for a decade, and England and Wales are way behind. In the meantime, at least 3.6 million couples remain exposed, and the lawyers who advise them have more to offer than most of them realise.”
