For the first time ever, the proportion of the population opting to marry or enter a civil partnership has fallen below 50%. The biggest fall has been in the under 30s of whom only 3.2% chose to tie the knot legally.
According to the latest set of statistics from the Office for National Statistics, the proportion of people in a relationship and cohabiting has increased from 19.7% in 2012 to 22.7% in 2022, a trend that looks set to continue. Although there are many reasons why people in long term relationships choose to not to marry it is likely that only a few have considered the legal implications of not doing so. In some contexts, such as farming where the boundaries between personal and business are often blurred, this can have unlooked for consequences.
Cohabitees have limited rights in law
Married couples (and civil partners) have always had certainty in law in the event of divorce or death. In the former, the principle of equality is the starting point for the division of marital property, regardless of who owns what; and in death (in the absence of a will) the deceased’s spouse is automatically first in line to inherit (most of) their assets. Cohabiting couples do not have this legal certainty. Without a legally recognised document (a will and cohabitation agreement), a cohabiting couple’s rights around children, property and finances can be very limited. For instance, if a couple splits up, any property is generally divided according to ownership (regardless of non-financial or financial contributions by the other person unless a beneficial interest can be proved). If a cohabitee dies without a will, their assets go to their next of kin (which include children) in a strict order of precedence (and cohabitees are not ‘next of kin’).
What rights do cohabitees have?
Not many, is the short answer, unless children are involved as cohabitees are treated as independent individuals under the law rather than as a couple. If a cohabiting couple have children only the mother automatically has parental responsibility. In order to assume parental responsibility, the father either has to be named on the birth certificate, enter into an agreement with the mother or obtain a parental responsibility, or child arrangement order. If the couple separates, then the best interests of the children will take precedence, which may well extend to what happens to the family home even if it is owned by one party rather than jointly.
The case for reform
There have been various efforts to introduce a Cohabitation Rights Bill, of which the latest iteration is currently languishing in the House of Lords. Its aim is to give cohabiting couples some basic legal protection including applying for a financial settlement if the relationship ends, and to introduce a right to an inheritance. However, given the government’s response to the recommendations put forward by the Women and Equalities Committee report in 2022 on the rights of cohabiting partners, acknowledging that ‘cohabitation is the fastest growing family type in England and Wales’, the Bill is very unlikely to see the light of day any time soon.
A major, and recurring, concern in the Committee’s report focused on the extensive but erroneous belief in ‘common law marriage’ among the general population. Another group that particularly concerned the Committee were those (especially women) who had entered into religious-only marriages that were not recognised under English law. They put forward several recommendations, some of which were partially accepted by the government, but the one that proposed better financial protection in the event of separation was rejected. The government response stated that it considers “that existing work underway on the law of marriage and divorce, which are directly relevant to issues concerning cohabitants, must conclude before considering any change to the law in respect of the rights of cohabitants on relationship breakdown.”
Cohabitation agreements
Given the government’s response to calls for reform, it is not surprising that cohabitation agreements are becoming more commonplace. Although they are not legally binding, providing they have been properly (and fairly) drafted and there is evidence that both parties have taken objective legal advice, most courts will take them into account, making potential disputes much easier (and cheaper) to resolve. Agreements can cover a range of things including who owns what (including the home); and who is responsible for the financial and non-financial contributions (such as DIY and childcare). Cohabitees should also make a will to ensure that each is provided for (although this needs to be updated if the couple separate) as well as ensuring that financial matters, such as pensions and insurance, are taken care of.
Until and unless the law changes, cohabiting couples must take direct responsibility for ensuring that each other is looked after and that– in the event of separation – both parties know exactly where they stand. A cohabitation agreement is, at present, the only option for cohabiting couples to ensure fair treatment before the law. Our family team regularly advises on, and drafts, cohabitation agreements and is very happy to discuss next steps if you are considering such an agreement.
