Call for Change for Cohabitees

In a recent article published by Resolution (an organisation of family justice professionals) it was reported that research (carried out by Whitestone Insight) found that 74% of cohabitees felt that the current laws were “unfit for today’s modern society”. This was echoed by those within the profession, with 75% of the Resolution members surveyed supporting a change in the law.

As stated by Dr Andy Hayward, Associate Professor in Family Law at Durham Law School, Durham University “It is time for society to confront the reality of modern families and offer cohabiting couples the basic legal protections they deserve.”

Current Law

In English law, there is no such concept as a ‘common law spouse’. There is a common misconception that cohabitees believe that after a period of time, they acquire rights akin to those who are married.  This is simply incorrect.

Unlike married couples, irrespective of the length of the relationship, there is no automatic right to claim against the other’s property, assets, pension (in life or on death), or ongoing financial support. Any claims must be brought under property and trust law principles (which is where it gets complicated and expensive to sort out!).

Where there are children under 18, separate claims can be bought by one parent for financial support for the benefit of the child or in restricted circumstances, by the adult child themselves. This does not extend to providing financial provision for the benefit of the former partner.

Why reform is needed

According to the House of Commons Library, there were 3.6 million cohabitees in 2021, a staggering increase of 14% since 1996. With divorce rates high and fewer people choosing to marry, this number may well continue to rapidly increase. It may be said that the law relating to cohabiting couples is outdated and fails to reflect current society.

There is a push for reform, but how far this will go remains to be seen.

So what can be done?

Those in cohabiting relationships can look to protect themselves by entering into a Cohabitation Agreement. This can set out the arrangements regarding where they live and each party’s rights and responsibilities regarding property, it can record how personal property is to be held, and the financial arrangements between them both during and after their cohabitation.

Having these discussions early and whilst relations are good can avoid acrimony, cost, and uncertainty of litigation if the parties choose to no longer live together

If you require any further information, please contact a member of the Geldards Family Team

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