Part two of this two-part article will look at whether the current law around cohabitation is fit for purpose and explore proposed reforms. Part one assessed the myth of “common law marriage” and the current rights available for separating couples.
Is the current law fit for purpose?
It’s hard to see how it can genuinely be said that the current remedies available are sufficient to protect those in enduring family relations upon separation or – as briefly mentioned above – upon death. It is certainly hard to see how the difference in treatment – the hierarchy of protection for couples – is justified, beyond the government not wanting to grapple with defining “cohabitation” for the purpose of legislating for this protection.
The natural impact of this inadequate financial remedy is that relationship-generated disadvantage will disproportionately affect women and those from vulnerable backgrounds upon separation from their cohabitee or on the death of their cohabitee.
The lack of remedy available to these families also stands in sharp contrast against many other jurisdictions. For example, our closest neighbour, Scotland, offers far superior protection to cohabiting relationships.
It’s also hard to see that the current law is fit for purpose when it is so at odds with society’s expectations about the level of financial protection for those in enduring relationships.
The law cannot be so out of touch with societal change and belief and must catch up.
In view of these clearly identifiable issues, there has been great push for reform over the years. In 2007 and 2011, the Law Commission identified the need for change and began to publish its recommendations on reforming the law for cohabiting couples (e.g. that unmarried partners who lived together for five years should have the right to inherit under the intestacy rules, without going to court, and if they had a child together then this entitlement would accrue after two years’ cohabitation).
The call for reform took on a new intensity in 2022, following the successful introduction of no-fault divorce and the escalation of cohabitation issues following lockdown.
The Law Commission has continued to propose an “opt-out” cohabitation scheme is adopted to avoid the issue of people falling into legislative gaps. Whilst there may be issues with this for those couples who find themselves accidentally falling into higher levels of protection than they desired, this is surely preferable to the inadequate protection of the current law?
Whilst change is awaited, it’s important that there is a dispelling of the common law marriage myth to enable people to consider their full rights and options. One of the recommendations from a 2022 report is for an immediate investment in a public awareness campaign to highlight the legal distinctions – we could not more strongly echo the need for this initiative.
If a cohabitee does not want to enter into a formal marriage/civil partnership, they can still protect their families’ financial position by agreeing terms for a cohabitation and separation agreements. These are contractually binding documents that have all the remedies of contract law available if breached and can be as extensive as the cohabitees decide or wish for them to be. Similarly, unmarried couples may wish to consider entering into a declaration of trust that records their respective shares in the equity of the property. This is often done alongside a cohabitation agreement, which can deal with the broader financial and practical aspects to the relationship.
Whilst many may fear these conversations as being awkward, it is better to have them now than to have them too late.
Article cowritten by Francesca Skakel (Solicitor in Birketts’ Family Team) and Stephanie Butler (Associate in Birketts’ Property Litigation Team)