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Election watch: Cohabitation reform is finally on the cards

Posted on 13 June 2024

With each of the three traditional major political parties having published their manifesto, one issue separating the Labour Party and Liberal Democrats from the Conservatives is a promise to reform the law on cohabitation, giving greater rights to cohabiting couples. Many in the family justice system have campaigned for change for years. 

At present, cohabiting couples in England and Wales have no rights to make any sort of financial claim against each other on the breakdown of their relationship by virtue of that relationship – no matter how long they have lived together. Any claims either cohabitant might have against the other is limited to a claim under property law, or a claim in respect of any children they may have. However, a 2022 report by the Women & Equalities Committee noted that a "staggering" 46% of the population in England and Wales wrongly believe that "common law marriage" exists. They noted that women and ethnic minorities are disproportionately adversely affected by the current regime (or lack of one). They made a number of recommendations, including for the adoption of an "opt-out" cohabitation scheme, as proposed by the Law Commission in a 2007 report.

However, the Government's response largely rejected the recommendations of the report, that family law should be reformed to better protect cohabiting couples and their children from financial hardship in the event of separation. The Conservative Party manifesto, published on 11 June, is likewise silent as to reform of the law on cohabitation.

Each of Labour and the Liberal Democrats have, however, committed to reforming the law on cohabitation. The Labour manifesto stated that they will strengthen the rights and protections available to women in cohabiting couples (albeit it seems likely that any change in the law would support the financially weaker party, regardless of gender) and the Liberal Democrats have promised to extend limited legal rights to cohabiting couples, to give them greater protection in the event of separation or bereavement.

What might this mean for cohabiting couples?

Neither Labour nor the Liberal Democrats have given any detail as to what sort of scheme might be put in place, but the creation of greater rights for cohabiting couples on separation will be welcomed by many in the family justice system, as providing better protection for those who may, for example, have given up work and financial independence to raise children during a relationship, only to be left without any form of financial support when the relationship breaks down, potentially decades later. The fact that so many couples already believe they have some protection, on the basis of the (incorrect) idea that they are in a "common law marriage" has been a matter of concern for family justice professionals for decades.

There is some debate as to whether any proposed scheme should be opt-in or opt-out. Many consider that any scheme should ensure that those couples who genuinely do not want any financial connection or claim on separation should be able to make that choice. On the other hand, there is concern to ensure that those who are unaware that they are not already protected by "common law marriage" or who may be in a controlling relationship are not left outside the scheme. It is likely that any reform in the law would require some further consultation, albeit this should not be a reason for reform to be delayed beyond the next Parliament. In the meantime, those considering cohabitation need to carefully consider the arrangements they will enter into. This how any property they purchase should be held between them and whether they are assuming any financial responsibilities towards each other.

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