Government confirm next steps for cohabitation law reform

The government is coming under increasing pressure to confirm its plans for cohabitation law reform. Labour pledged in its 2024 manifesto to strengthen the rights and protections offered to those in cohabiting relationships.

Earlier this month, the government confirmed that there will be a formal consultation later this year “to build public consensus on what cohabitation reform should look like”. Cohabitation law reform is a hot topic with a wide range of public and legal opinion.

The common law marriage myth

Key to the public’s perception and understanding of the rights of those in cohabiting relationships is education. There is still an alarmingly high percentage of the population that believe in the common law marriage myth, a misconception that cohabiting couples gain equal rights to those in a marriage or civil partnership by virtue of living together.

Under the current law, cohabitees will not be afforded the same financial rights as married couples irrespective of how long they have lived together. On separation, cohabitees typically have two possible bases for a financial claim, but neither exist purely as a result of ‘cohabiting’:

1. A claim under the Trusts of Land and Appointment of Trustees Act 1996 – commonly known as “TLATA” or “ToLATA” – gives the court the powers to make orders where there is dispute as to a property’s ownership. This involves a cohabitant having to demonstrate a beneficial interest in a property.
2. A claim under Schedule 1 of the Children Act 1989. An obvious prerequisite to this claim is that the parties must have a child or children, and a claim under this statute focuses purely on the financial needs of the child.

At a more advanced level, the debate centres around what rights cohabitees should acquire, and what is fair in a scenario where a couple has actively chosen not to marry. Is it fair or right for the government to increase the rights of cohabitants in line with, or close to, those held by married couples when one party or both have decided they do not want such rights or potential claims created?

What impact will this have on the UK’s already declining marriage rate? Will couples choose not to cohabit when they would otherwise wish to do so out of fear of creating financial claims for their partner in the event of a separation?

With these questions in mind, it is perhaps unsurprising that the government has not yet taken action; it is not just a legal debate, but a socio-political one as well. Family lawyers up and down the country, therefore, await the public consultation with great interest.

In recent months we have seen surges of new instructions in response to the government’s budget announcements and changes to the law – so what can cohabitants do in the meantime to get ahead of the curve and beat the logjam that changes to cohabitation law may cause?

The best family law advice is always proactive as opposed to reactive, and cohabitants should always consider the good sense of putting in place a cohabitation agreement and deeds of trust regulating their relationship and ownership of property, whether they are early in their relationship or have been cohabiting for many years.

Cohabitation agreements are effective in removing some of the areas of doubt or misunderstanding in a financial relationship and can mitigate or even eliminate potential claims on separation by clearly defining the rights and responsibilities of cohabitees.