How family lawyers should respond to the ongoing rise of cohabitating couples in 2024

Data from the ONS highlights the proportion of people who live in a cohabiting couple has increased from 20.6% in 2011 to 24.3% in 2021 (the most recent census).

This is an increase across all age groups aged under 85 years and is the fastest growing type of family unit of the last ten years.

If I were a betting woman, I’d put money on that figure increasing in the 2031 census. Social trends are changing and marriage rates are reducing and so it is inevitable that cohabitation rates will increase.

I would also be in interested to know what percentage of the 3.6 million cohabiting couples believe they are in a ‘Common Law Marriage’. My guess it would be quite high.

Common Law Marriage is one of the biggest misconceptions in family law and one which despite family lawyers trying to explain otherwise, doesn’t appear to be going away any time soon.

In fact, when I recently shopped around for car insurance, some of the big comparison websites and insurance companies had the option of ‘Common Law Marriage’ when selecting your relationship status.

Given the change in social trends and the historic stigma surrounding divorce dissolving over the years, there are many divorcees who begin new relationships and cohabit. These couples are at high risk because one party could have built up significant wealth throughout their life. If the financially weaker party believes in Common Law Marriage, they may believe they will automatically inherit everything on death. They could be very vulnerable indeed.

Many cohabiting couples also have children, whether that be together or from previous relationships. This adds another layer of possible complexities into relationship breakdown and one which must be considered delicately with clients, putting the needs of the children first.

Ahead of the general election The Labour Party has included reform to cohabitation rights in their plans, but there is much work still to be done. Until the law changes, family lawyers need to remain vigilant.

We must work with our colleagues in conveyancing to ensure that clients purchasing a property together or who are transferring their property into the joint names of themselves and their partner, are alive to the ways in which they can own property and the importance of expressly recording their respective percentages by way of a Declaration of Trust and the need to make Wills.

Without such, the rise of property disputes and claims under Trust of Land and Appointment of Trustees Act 1996 could well increase at the same rate as cohabiting couples!

We need to be aware of the tax consequences to clients on the disposal or transfer of property if they are not married and know whom to refer them to for specialist tax advice.

We need to explain any misconceptions that a joint legal owner would automatically inherit their late partner’s share in property on death, or any of their estate come to that.

We can recommend cohabitation agreements to our clients, but are they enforceable on relationship breakdown? The Law Commission has expressed reservations about the enforceability and stated that “insofar” as cohabitation agreements are lawful, they are governed by ordinary rules of contract and can therefore be challenged on any of the following ordinary contractual principles – fraud, duress, undue influence, misrepresentation, mistake or illegality on other grounds.

And for the cohabiting couples whom have children living with them, our clients need to be alert to the claims a non-legal owner can bring under Schedule 1 Children Act 1989.

So where does that leave us, the family lawyers who are dealing with the breakdown? My view is to support each and every campaign and shout from the rooftops, to those who will listen, that urgent reform is required. Resolution has long campaigned for reform and I encourage all members of Resolution to support this.

Until reform I believe we need to take a ‘grass roots approach’, starting from the bottom and working holistically with our colleagues in different practice areas so clients are clear from the outset what would happen on relationship breakdown, if they are cohabiting only, ahead of buying property, businesses, making Wills etc.

Written by Lisa Payne, Chartered Legal Executive at Wilsons Solicitors