As marriage popularity declines, family lawyers await Government decisions on cohabitation reform

The Office for National Statistics recently revealed data on the changing status of relationships in England and Wales, with marriage rates of people aged 16+ dropping below 50% (to 49.4%) since comparable records began.

Same-sex marriages have increased, however, with an estimated 167,000 people in a same-sex marriage in 2022, compared to 26,000 in 2015. Nevertheless, marriage in general is continuing to decline in popularity.

The way we view relationships and marriage is constantly changing, and with these new revelations that marriage rates have fallen below 50%, there have been renewed calls for laws and structures in England and Wales to reflect the changing realities.
We are seeing a rapid diversification of the way families are built and grown, whether this be cohabitation, single parenthood, blended families, or even platonic co-parenting which, whilst a relatively new phenomenon, is certainly finding its place in society.

Cohabitation is now the norm and has been the fastest growing family type in England and Wales for several years. There is an ever-increasing number of couples who are actively deciding to not get married or enter into a civil partnership but are living together without any legal status. Cohabitees now account for more than a fifth of over 16s at 22.7%, compared to 19.7% in 2012.

Family lawyers have renewed their calls for cohabitation reform in response to these statistics, and it is certainly an area that needs examining. The Cohabitation Rights Bill entered Parliament in 2019 and aims to give cohabiting couples the same rights as married couples if they have lived together for at least three years or have a child together.

These rights would potentially include:

• Being able to apply for a financial settlement if the relationship breaks down to address any economic imbalances as a result of cohabitation,
• Right to inheritance if one spouse passes away, under intestacy rules,
• Right to apply for a child maintenance order.

However, this Bill has faced several delays and is making slow progress through Parliament.

At the Labour Party Conference in October 2023, MP Emily Thornberry announced Labour’s Commitment to cohabitation reform should they win a general election. The focus would be on putting protective measures in place for women to prevent them being trapped in unhappy or abusive relationships without the protection of law.

Currently, irrespective of the amount of time that a couple has been together or whether they have children, there is no legal entitlement to a share of their partner’s finances or assets should the relationship break down.

Cohabitees are often left with very limited rights if they separate, and in some cases having to deal with complex areas of law such as the Trust of Land and Appointment of Trustees Act.

These pieces of legislation make provisions for disputes that may arise when an unmarried couple who share property together, separate. Applications can be made to the court about what should happen to a property in the event of a disagreement between a separating couple and the court has powers over the outcome.

However, this can be a long and complex process and a difficult area of law that does not automatically protect cohabitees. Therefore, applications must be carefully considered, and legal advice sought. Where possible, mediation is encouraged to resolve disputes.
Cohabitation reform – depending on its look – may reduce or remove the need for separating cohabitees to apply for court orders under Trust of Land or Appointment of Trustees Act.

Whilst it is not yet known when, or how, cohabitation laws might be brought in or what they will eventually look like, it is a recurrent issue. Calls have been particularly strong in the wake of the Labour Party Conference and with the figures from ONS highlighting the declining popularity of marriage in England and Wales.

Whilst we await potential change, it is highly recommended that cohabiting couples who wish to have financial protection in place seek legal advice and have a cohabitation agreement put in place. Although not legally binding, this is a formal document setting out property, finances, children, assets and what happens if one spouse passes away. It can be changed at any point in the relationship, should circumstances alter (for example, the birth of a child).

Family lawyers are eagerly awaiting Government thoughts on cohabitation laws.

Written by Abi Jones, a Solicitor at Stowe Family Law.