Partner Michael Gregory writes for STEP Journal on the ambiguity that surrounds cohabitation rights

Partner Michael Gregory calls for the rights of cohabitees to be better stipulated to the public in light of recent figures showing cohabitation as the fastest growing relationship type in the UK.

Michael‘s article was published in STEP Journal Issue 2 2023 on 31st March, and can be read here (subscription only).

Reports by the UK Office for National Statistics have confirmed that cohabiting with one’s partner without getting married or entering into a civil partnership has become the fastest-growing relationship type in the UK. However, many cohabiting couples continue to believe that the law will provide meaningful protection for them should their relationship end. Myths persist around perceived ideas that common-law husbands or wives exist, particularly where couples have lived together for a number of years. Cohabiting couples who have lived with one another for a number of years do not automatically acquire property rights nor do they have an entitlement to a share of the other’s assets, pensions or a claim for maintenance.

A CALL FOR REFORM

An August 2022 report by the Women and Equalities Committee1 called for cohabitation law reform and greater protection for cohabiting couples (especially those with children). The UK government rejected this call for reform, stating that ongoing marriage and divorce reform was a much higher priority.

However, the need for there to be greater transparency in the law affecting cohabitees was recognised. This would allow more information to be readily available, ensuring that couples who choose to simply live with one another will be made fully aware of their legal rights as they currently stand within England and Wales.

In contrast, under Scots law, although cohabiting couples do not have an automatic right to claim financially against an ex-partner and are not entitled to the same financial provision as married couples or those in civil partnerships (as is the case in England and Wales), it is widely understood that, upon separation, the law does enable cohabitants to make a financial claim against their ex-partner. This is, of course, dependent upon the duration and nature of the relationship, as well as upon the extent of any financial arrangements that were already in place during the time. This marked contrast may have added further to the myths surrounding how cohabiting couples in England and Wales are protected when their relationships come to an end. If this principle applies in Scotland, surely the cohabitee in England and Wales must be similarly protected.

What then is the current law in England and Wales and how are cohabitation disputes dealt with? There is no specific legislation that explicitly protects cohabiting couples. Moreover, cohabitation disputes are dealt with through complex property and trust principles that are applied through stringent civil litigation procedures. These principles in law and procedure in no way take into account the family dynamics and other nuanced personal circumstances that will have developed during the course of a relationship. Rather, they focus upon costly procedural claims that often leave the financially weaker party having to demonstrate a direct financial contribution to the purchase of a property in which they lived during their cohabitation.

Although there has long been a call for cohabitation laws in England and Wales to be reformed, a complete overhaul of such law seems unlikely any time soon, particularly in view of the government’s recent response to the Women and Equalities Committee report. There is also the argument that a complete overhaul of cohabitation law may undermine the huge progress that has been made to date with same-sex marriage, as well as opposite-sex civil partnerships, a topic that continues to be high on the government’s agenda.

Since the introduction of the Civil Partnership (Opposite-Sex Couples) Regulations 2019, for example, more opposite-sex couples are now entering into civil partnerships. This is perhaps because they are seen as the modern alternative to the traditions of marriage and as being more relatable to couples who do not wish to be bound with the traditional religious and patriarchal associations that often come with getting married. Whether in a same- or opposite-sex relationship, couples now have more choice than ever in protecting their financial positions and formalising their relationships for the future.

PROTECTION FOR PARTNERS

When couples choose not to marry or enter into a civil partnership but decide to live together and invest in property with one another, there are a number of ways to ensure that those decisions are protected in English and Welsh law.

Couples can enter into a carefully drafted cohabitation agreement, for example, that need not be overly expensive and can detail matters ranging from who should move out of a jointly owned property and what interest each person should have/receive in an increased property value should the parties separate, down to who pays what bills and who owns the family pet.

Declarations of trust can explicitly confirm the extent of a person’s investment into a property at the time of purchase, ring-fencing those investment monies for the individual should the relationship break down and the property have to be sold or transferred to the other partner.

Having a will in place and a detailed letter of wishes will also firmly cement how an estate will be divided and what should happen financially if one cohabitee were to die before the other.

Further, sch.1 to the Children Act 1989 is available for any child/children born to cohabiting couples should there be a dispute as to ongoing financial support for a child that falls outside of the provisions of simple child maintenance payments.

Extensive changes to the current cohabitation law, using a benchmark of time spent cohabiting as the ignition for a cohabitee to be able to make a financial claim against the relationship, would arguably impact on the ability for individuals to deal freely with their financial assets. Individuals may feel pressured the moment that their partner moves in with them, which may have more negative connotations for the relationship than positive ones. There is also the view that marriage and civil partnerships are now available for all, regardless of sexual orientation, and as such, couples should take full advantage of these law reforms rather than look to completely overhaul the laws that are associated with cohabitation in England and Wales.

ALTERNATIVES TO THE CURRENT SITUATION

Whatever one’s view, there clearly must be greater transparency in the law that affects cohabiting couples when they separate so that they are fully aware of how any financial disputes between cohabitees will be addressed, which currently is not happening. This needs to be addressed seriously by the government through active advertising campaigns and other overt reporting rather than simple lip-service responses to a subject of law reform that has been high on many campaigners’ agendas for years.

Rather than a complete overhaul of cohabitation laws, which seems unlikely under the incumbent government, perhaps a middle ground might be to retain cohabitation disputes within the family law arena and procedurally deal with matters under the Family Procedure Rules (the Family Rules). At present, any law relating to a cohabitation dispute is dealt with procedurally under the Civil Procedure Rules (the Civil Rules), which do not allow for individual circumstances/nuances of a case to be assessed proportionately as they are through the Family Rules.

Further, should cohabitation disputes be dealt with by the family courts rather than the civil courts (which they are at present), there would be a greater propensity for couples to be encouraged to engage in mediation and other alternative dispute resolution routes outside of court. Certainly, couples would have to prove through the family procedure that they have, at the very least, attempted mediation before issuing any formal application at court, which is something that is not a requirement at present under the Civil Rules.