In 2024, there were 3.5 million cohabiting couple families in the UK – 17.7 per cent of all families. At present, those couples have significantly weaker legal protections at the end of the relationship than married couples. The Law Commission is considering reform of the law in respect of cohabiting couples and a consultation has been promised anytime now. But is reform needed? And if so, how is it likely to affect not only the [many/few/hardly any now, thanks to house price increases] couples purchasing property, but also the wider family members increasingly supporting them in today's property market?
Cohabitation – fact and fiction
A 2022 report by the Women and Equalities Committee found that a "staggering" 46 per cent of respondents believed that there is such thing as "common law marriage" – namely that couples who cohabit for a certain period of time acquire rights, in particular financial claims, against each other, by virtue of their cohabitation. As a result, they may make decisions in relation to how their finances are managed, or whether one gives up a career to raise children on the assumption that they will have protection in the event that the relationship ends. Many more couples do not even consider whether cohabitation gives them rights. It is frequently only after the relationship has ended, whether by way of separation or death, that these questions are considered. In fact:
- There is no such thing as "common law marriage" in England and Wales and couples do not acquire financial claims against each other on the breakdown of a cohabiting relationship, no matter how long the relationship lasted.
- Cohabiting couples do not currently receive the same, more favourable, tax treatment as married couples.
- A surviving cohabitee does not inherit under the intestacy rules on the death of a cohabiting partner and has only a very limited ability to claim on the death of a cohabitee to a share of their estate.
- While having children together may permit certain financial claims in respect of the children, it does not give the cohabiting partners any additional claims in their own right.
A need for reform? Or a sledgehammer to a nut?
Reform has previously been proposed, both by the Women and Equalities Committee and a previous Law Commission report in 2007, each of which recommended an opt-out statutory scheme giving qualifying cohabitees the right to apply for financial provision on separation. In neither instance was the proposed reform carried into effect. The current Labour Government has, however, committed to reforming the law on cohabitation, with a particular emphasis on protecting women (who are usually the financially weaker party in a different-sex relationship) and children on the breakdown of cohabiting relationships.
A number of other jurisdictions give cohabiting couples rights, such as accruing property rights similar to married couples after a minimum period of cohabitation or allowing financial awards to be made where one cohabitant has suffered economic disadvantage. Campaigners have sought a change in the law here to better protect more vulnerable parties.
However, for many couples, particularly those who are more financially astute, the choice not to marry is a conscious one. Where there is a significant wealth imbalance between the couple at the outset of the relationship, in particular where one party has or is anticipated to receive significant family or other external wealth, the decision not to marry may be taken expressly to ensure that financial claims cannot be brought on the breakdown of the relationship.
There are also a number of concerns as to:
- how cohabitation will be defined in any change in the law. For many couples, the process of living together is not a sudden one, and may evolve over months or years;
- whether any proposed change in legislation would be retrospective in effect or only apply to relationships commenced after it comes into effect;
- how any proposals might affect internationally mobile couples. Different jurisdictions have different regimes in respect of recognition of cohabiting relationships. One question that will need to be considered is whether e.g. a period of cohabitation overseas would be taken into account when determining any period of qualifying cohabitation here;
- how any third party contribution to the cost of a home might be treated.
How is this likely to affect cohabitees?
Rights of cohabitees can be relevant not only where a property is owned solely by one party but also where a property is jointly owned by parties who are not married or in a civil partnership. Careful consideration will need to be given to ensure that in attempting to protect those who need it most, other interests are not unduly prejudiced.
Consider an adult child who has purchased a property using a gift of money from their parents. If that child allows a partner to occupy the property, they could, following reforms, be at risk of losing control of that gift. This could arise if the relationship breaks down and the couple meet whatever definition of "cohabitation" is provided in any new legislation. The partner who currently has no claim on the property could, in the future, be given legal rights to claim an interest in the property.
As noted above, falling within the definition of cohabitants may occur as the relationship matures, but failing to spot it could give rise to unintended consequences. It may not be the most romantic of gestures but entering into a cohabitation agreement sooner rather than later would be sensible.
Agreements can cover a range of areas and be detailed or more general in their approach. They can spell out the parties' shares in the property and on what basis those shares might change, if at all. By clarifying expectations around financial contributions, gifts and contributions from family members can be protected. As noted above, cohabiting couples do not currently have the same rights on death as spouses under the intestacy rules and a cohabitation agreement can address this.
The anticipated reforms to the law on cohabitation may have significant implications for those purchasing a property, those already sharing a home with a partner, and those otherwise affected by the issues discussed in this article. Regardless of the form any future legislation may take, a cohabitation agreement remains one of the most effective ways to protect the parties' interests, clarify expectations and provide certainty — and, where relevant, for family members who have contributed financially. Anyone in a cohabiting relationship would be well advised to seek early legal advice.