Column: Cohabitation Laws in Practice

Gabrielle Thomas, a senior associate from Stowe Family Law explores the potential outcomes of a new cohabitation reform, set to be enforced by 2026. 

As the popularity of marriage declines, many couples now choose to live together prior to getting married, and some choose not to get married at all. In recognition of the shifting relationship landscape in modern society, MPs will draw up plans to reform rights for cohabiting couples.

The legal sector has warned of the potential risks of cohabitation, as it does not offer the same legal protections as marriage.

Last month, the government revealed plans to fast-track the reform, and family lawyers have awaited the change.

An exploration of the potential structures of cohabitation reform.

A new survey conducted here at Stowe Family Law has revealed that 92% of people believe cohabitees should have legal rights and protection, including rights to inheritance.

Cohabitation reform has been an ongoing topic of conversation for years, even decades, and a point of contention between family lawyers and the Government, particularly as cohabitation continues to be the fastest growing family type in the UK.

However, what the survey has revealed is that reform is not just a concern for lawyers but that it is desired by the general public, too. 46% of respondents stated that they believed cohabitees have the same legal rights as married couples when they separate, or one party dies. Once they were informed that this is not the case, and overwhelming majority replied that cohabiting couples should have legal protection.

There has been much speculation about what cohabitation laws would look like in practice in England and Wales. Inspiration may well be drawn from other countries who have had a legal framework in place for many years, for example Australia or even Scotland.

Worryingly, 25% of respondents to Stowe’s survey suggested that couples should immediately be eligible for full legal rights, including rights to inheritance, from the moment they move in together.

This could have several adverse implications. There would likely be long-term financial ramifications, specifically for the financially weaker party in a relationship. Stereotypically, this tends to be the woman. By assuming a marriage-like relationship at this stage, vulnerable individuals could be put at risk from their partners who push a faster progression of the relationship in order to potentially financially profit.

The other side of the coin is that couples may be entirely put off from moving in together because they fear the consequences.

What could cohabitation law look like?

It is unlikely that the Government would support a framework where moving in together immediately triggered legal rights for a couple.

So, what could cohabitation law look like in practice? Most experts agree that there should be some form of time frame in place, for example a couple must have lived together for two years before they could be eligible for rights. Having a child together could also be a criterion.

In Scotland, rights are based on whether a couple has been living together as if husband and wife, or in a civil partnership, rather than on the length of time they have shared a home. In a dispute, the length of the cohabiting relationship will be taken into consideration, but alongside other factors.

Any laws would need to have clear boundaries in place. This could be through the introduction of an opt-in or an opt-out system. In Australia, de facto couples who have been living together for at least two years or have a child together are automatically entitled to legal rights as if they were married. If they do not wish these rights, they must opt-out by making a financial agreement. England and Wales could follow suit.

However, interestingly, 86% of respondents to the Stowe Family Law survey said that cohabitation laws should be opt-in. This might mean that Cohabitation Agreements become legally binding. In this case, cohabitees would only be entitled to legal rights and protections if there was written documentation detailing what should happen to their finances, assets, and property in the event of a relationship breakdown or the death of one party.

This would allow for a degree of flexibility for couples as they would have ownership over their own agreement, whilst still needing to fit within a legal framework. Any written agreement would need to have input from a solicitor and potentially be agreed by a court, but it would allow the couple – to an extent – to have a personalised structure.

As with any prospective reform, there are arguments against. For many couples, cohabitation is an active choice and they have chosen to not get married specifically in order to protect their assets. Family lawyers often see this with new relationships following the breakdown of a marriage where, in the financial settlement, assets have already been divided. It may also be that one or both parties have children from a previous relationship and want to ringfence their money to protect their children’s futures.

Not only this, but marriage is a lifestyle choice – and one which an increasing number of couples are not choosing.

Conclusion

Support for some form of clear legal framework and protective rights for cohabitating couples is building, and this is no longer just from the legal sector. The change, if and when it is eventually implemented, must be delivered carefully with solid criteria and eligibility boundaries in place.