There is a compelling case for reforming cohabitation law. The current system can leave a financially vulnerable partner dependent on property law that was never designed to address the consequences of a family relationship breaking down. The government’s proposals are therefore welcome in principle.
But they should not be mistaken for a straightforward route to certainty. A statutory claim for separating cohabitants will open up new areas of dispute. The test of the legislation is whether it addresses them from the outset or leaves the courts to find answers one case at a time.
Where does cohabitation begin and end?
The proposed framework would apply to couples living in an “enduring family relationship”, subject to a three-year qualifying period for those without children. Neither part of that test is clear-cut.
Marriage has a defined legal starting point. Cohabitation does not. One partner might retain a separate property while spending most nights at the other’s home. A couple might live apart temporarily for work. In either case, the date on which cohabitation began is open to argument.
The three-year threshold gives that uncertainty real financial significance. One party might say that the relationship ended shortly before the threshold was reached; the other that it continued beyond it. A financially stronger partner might also end the relationship before the three years expire to avoid a claim. The court would then have to work backwards through messages, bills and the parties’ living arrangements to establish when the relationship began and ended.
Less straightforward, but far from unusual, circumstances complicate the position. If the parties separate during pregnancy, does the exemption for couples who share a child apply immediately, only once the child is born or retrospectively? The position of international couples is no clearer. The legislation must explain whether time spent living abroad counts towards the qualifying period and when a claim can still be brought in England and Wales. Without clear rules, arguments about eligibility and jurisdiction will precede any consideration of the claim itself.
The unmarried couple’s pre-nup?
Qualifying couples would fall within the statutory framework automatically unless they opt out. That protects the financially weaker partner, but it also imposes significant legal consequences without the conscious step involved in marriage.
An opt-out agreement is expected to resemble a cohabitation agreement, with many of the safeguards associated with a pre-nup. Financial disclosure and separate legal advice are sensible protections, but they come at a cost. Younger couples moving in together to share rent are among those least inclined to seek legal advice. Many will not realise that an agreement is needed.
An opt-out will not necessarily provide finality. Disputes will focus on whether the disclosure was sufficient and whether each party understood the rights being surrendered. There will also be cases in which the wealthier partner presented the agreement as the price of continuing the relationship. The court needs enough discretion to prevent unfairness. Every additional layer of discretion, however, weakens the certainty that the agreement was intended to provide.
What happens to existing agreements?
Many couples have already arranged their affairs through cohabitation agreements or declarations of trust. Some deal only with ownership of the family home. Others were signed on the express understanding that neither partner would acquire personal financial claims against the other.
Treating every existing agreement as an effective opt-out would be wrong, particularly where the proposed safeguards were not followed. Requiring every couple to renegotiate immediately would be equally unsatisfactory. It would impose expense on people who had already taken steps to define their financial relationship.
The legislation needs a meaningful transition period. It must also explain whether existing agreements remain effective, in whole or in part. Leaving that question unanswered would undermine the certainty those couples sought when they recorded their arrangements.
Unexpected financial claims
Some couples have consciously chosen not to marry because they do not want the financial obligations associated with marriage. Under an automatic statutory scheme, they would nevertheless face the prospect of a personal claim on separation.
Describing the remedy as “needs-based” does not make its consequences insignificant. An order for housing provision, maintenance or a share of pension benefits would materially alter the parties’ financial positions. For some, the outcome will closely resemble the obligations they believed they had chosen to avoid.
The new claims will also overlap with property proceedings under TOLATA and, where children are involved, claims under Schedule 1. Connected applications should be determined together. A system that requires the same family to pursue parallel proceedings will increase costs and create a risk of inconsistent findings.
Reform must confront the difficult cases
Reform is desperately needed, but a new jurisdiction will produce new litigation. The family justice system is already under considerable pressure.
If the government wants the proposals to deliver fairer outcomes, it must do more than create a broad statutory entitlement and leave the courts to “fill in the gaps” and supply the detail. The difficult cases are not incidental. They will determine how the scheme operates in practice.
Clear legislation will not prevent every dispute, but it can prevent avoidable ones. The success of the reforms will depend on whether Parliament addresses the flaws now and gives the courts the resources they so evidently need to deal with the cases that follow.
About the author
Toby specialises in all areas of family law, including financial settlements on divorce and arrangements for children after parents separate. His financial cases frequently have an international dimension, often involving trusts, inherited wealth, and family businesses. His clients include entrepreneurs, business owners, City professionals, and their spouses/partners.
Toby is equally adept at dealing with highly contested children cases as he is with resolving complex financial disputes. He is an experienced practitioner in the field of international child abduction and is frequently instructed by left-behind parents in both Hague and non-Hague Convention cases, international relocation cases, and jurisdiction disputes. On the non-contentious side, he regularly advises in relation to pre-nuptial and post-nuptial agreements, cohabitation agreements, and wealth protection.
The views expressed in this article are those of the author and not necessarily those of Today’s Family Lawyer.
