Cohabitation - The next area of family law for reform

In recent years we have seen possibly the biggest change in the family law system for some time with the No Fault Divorce system. With that issue now dealt with the government are now due to publish a consultation on the rights of cohabiting couples next year. This article sets out the current guidance and what hopefully should be considered. 

Cohabiting couples are on the rise in the England and Wales. The Office of national statistics when comparing figures from 1996 to 2021 report a 144% increase of the number of cohabiting couples in England and Wales. When comparing the same statistics for the number of married couples when looking at the 1991 figures to 2021 the number of marriages have reduced by 11.5%. As such it’s an area of law that has long gone overlooked.

What’s worse is that unmarried couples don’t have a lot of same protections that married couples do. Currently how a property is legally held is unusually how a property is divided on separation. Only where one person has undertaken works and there is clear evidence of express discussions between the parties can a person attempt to argue for a higher share. The system for married couples is different. Whereas the starting point is an equal division as to the as-sets, the court then looks at needs. What’s worse is that there are no rights for unmarried couples with respect to pensions and assets not in their name. There is no right to partner maintenance. Consequently, the less financially stable party comes away the worse off of the two.

Resolution, a national organisation of family lawyers who’s goal is to settle matters as amicably as possible, have long campaigned for better rights for married couples as they did before with divorce reform and the government now finally appear to have listened. 

The consultation due to take place later on this year is being opened so everyone can set out their views as to what is needed. It may be argued that unmarried couples should have the exact same rights as married couples. The key question to ask is should the fact that a couple is married give them any more benefits than an unmarried couple. To argue the same would seem unfair. Considerations of course need to be applied to the length of relationships and assets that have been built up with the parties’ endeavours. It’s a complex area which is why the government are asking to hear everyone’s views. Once that information is gathered there can then be careful consideration to what reform is needed to achieve the best possible outcome for every-one.

For now, what can unmarried couples do? One possible solution would be to consider a cohabitation agreement when a couple is looking to move in together. It can set out the boundaries of what’s expected if the worse happens and the relationship breaks down and operates in a similar way as to a pre-nup. Whilst not particularly romantic it needs to be looked at more as an insurance policy that shouldn’t be needed.

Whilst these solutions are not for everyone its hoped that a more modern approach can be taken by the law when looking at unmarried couples.