Renewed calls for legal framework to protect cohabiting couples

John Osborne from Harrison Drury’s divorce and family law team discusses the latest calls for a legal framework to protect cohabiting couples as the most recent census reveals the number of couples who live together without marrying is on the rise.

According to Census 2021 – released on February 9, 2023 – the number of cohabiting couples living in England and Wales has increased since 2011. The proportion of people who live as a cohabiting couple (not in a marriage or civil partnership) has increased from 20.6 per cent in 2011 to 24.3 per cent in 2021.

This is particularly the case for younger couples in their twenties and early thirties and reflects a general downward trend in the number of marriages in and an increase in the age at which couples marry.

This has prompted renewed calls for a new legal framework for cohabiting couples which reflects this.

A new legal framework would be particularly important for younger couples with young children together who may have a significant financial dependence on each other.

Currently if a cohabiting couple separates, they must divide assets they own jointly between them, such as their home. But there is no facility to share other significant individual assets, such as pensions. Pension sharing is only currently available in the event of a breakdown of a marriage or civil partnership.

With regards to other financial assets, one partner in a cohabiting relationship could acquire significant savings and investments in their own sole name which the other partner would be unable to claim a share of if the relationship breaks down.

The current position can cause significant unfairness, particularly in situations where one partner has taken on more of the childcare responsibilities while the other partner has continued to progress their career, increasing their income, and earning capacity for the future.

If the family home is owned in the sole name of only one partner, it can be extremely difficult for the other partner to claim a legal interest in the property.

When relationships end in these circumstances, financial outcomes will be very different to a married couple going through a divorce. A cohabiting couple may be unaware of their legal position in the event of a separation, assuming it would be similar to divorce.

However, financial provision must always be made for any dependent children and it is possible to make applications to both the child maintenance service and the family court for this, whether the separating couple is married or not.

Couples may choose to enter into a cohabitation agreement, which records how their assets and income should be divided between them in the event of a separation. This will assist couples who wish to agree and record the financial provision they wish to make for each other in the event of a separation.

Cohabiting couples may also wish to seek legal advice about what their financial position would be in the event of a separation, to ensure that they are both aware of the extent of their legal obligations and responsibilities to each other if their relationship ends.

Despite several developments including the cross parliamentary Women and Equalities Committee providing a detailed report highlighting proposals for cohabitation law reform, the government has no immediate plans to consider changes to the law. It is therefore strongly advisable to seek legal advice if you are in a cohabiting relationship to protect your rights.

If you are in a cohabiting relationship and would like further information and advice regarding your personal situation or would like to discuss preparing a cohabitation agreement, please contact Harrison Drury’s divorce and family law team on 01772 258321.