Partner Michael Gregory examines the case for cohabitation law reform in The Times.

Michael’s article was published in The Times, 16 March 2023, and can be read here.

With more than half of children in England and Wales born out of marriage, the government’s intransigence over cohabitation law reform is more problematic than ever. An archaic attitude towards cohabitation is affecting an increasingly large section of the population, who deserve far better protection than they are currently afforded.

Since 1996, the number of cohabitants has rocketed by 144%, reaching 3.6 million in 2021. With a younger generation displaying even more indifference to getting married than their forebears, the need for updated laws is even more pressing.

While the government remains wedded to outdated views, there is little likelihood of full reform in the short term. The government has clearly confirmed their intention to focus on same sex marriage and civil partnerships for opposite sex couples rather than an overhaul of the law affecting cohabiting couples.

However, there are interim changes that could both prove more palatable to lawmakers as well as ameliorate the situation for cohabitants. Giving the family courts jurisdiction over cohabitation disputes, and replacing the current system in which inflexible Civil Procedure Rules apply, would be a welcome change in bringing the rights of cohabiting couples in line with those of married ones.

Despite the need for real change, successive governments have simply paid lip service to the idea, and have taken little meaningful action. In 2007, the Law Commission’s proposal for comprehensive reform was kicked into the long grass, and last year’s pro-reform report from the parliamentary Women and Equalities Committee was similarly rejected.

The reluctance to strengthen cohabitants’ protection in the event of separation or death is compounded by the government’s failure to improve public awareness of cohabitation rights. This information vacuum has inevitably led to a lack of knowledge over the division of assets such as property or pensions when a cohabiting relationship breaks down.

46% of people in a 2019 study believed that cohabiting couples enjoyed the status of a ‘common law marriage’, which supposedly assured them the same legal rights as married couples or those in civil partnerships. While this is not the case, it is incumbent on the government to clearly explain the law, dispel myths and leave nobody exposed to unexpected difficulties when cohabitants’ relationships come to an end.

By refusing to move with the times and recognise that the institution of marriage is not the first choice for many couples choosing to live together in modern British society, ministers are doing a dangerous disservice. The government’s attitude will not make marriage any more attractive to cohabiting couples; instead, the law must be updated to reflect the new societal landscape. Change is long overdue, and at the very minimum, the government must educate cohabiting couples on their current rights, and put an end to the confusion and uncertainty.