Cohabiting Couples: Is Reform on the Horizon?
Introduction
Cohabiting couples are the fastest-growing family type in the UK. In the last 25 years, the number of cohabitees has risen by over 140%, now accounting for more than 3.6 million couples. Yet the law in England and Wales has not kept pace.
Many people wrongly assume that living together for a period of time creates a “common-law marriage” with rights akin to those of married couples or civil partners. In fact, no such status exists. According to recent surveys, nearly half of all cohabitants (46%) mistakenly believe in common-law marriage—a misconception that leaves thousands legally and financially vulnerable when relationships break down or when one partner dies.
The question now is whether 2024 could finally bring reform, particularly following Shadow Attorney General Emily Thornberry’s pledge at the Labour Party conference to place cohabitation rights back on the political agenda.
The Current Legal Position
Under current law in England and Wales, unmarried cohabitants have no automatic rights to financial provision from each other when they separate, no matter how long they have lived together or how many children they have. Their options are limited and piecemeal:
1. Property Disputes – TOLATA 1996
Claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) allow cohabitants to establish or challenge property rights. For example:
- A person may argue they have a beneficial interest in a home they do not legally own, if they contributed financially or relied on a promise.
- Courts can order the sale of a property or declare respective ownership shares.
- Proprietary estoppel claims may also arise where one partner relied on assurances of ownership, only to be treated unfairly later.
These claims are legally complex and fact-heavy, often producing inconsistent or harsh outcomes.
2. Financial Support for Children – Schedule 1, Children Act 1989
Where children are involved, a cohabitant may apply for:
- Periodical payments (child maintenance).
- Lump sums for a child’s benefit.
- Transfer or settlement of property for the child’s use.
However, these claims are strictly limited to child welfare. They do not provide the adult cohabitant with financial support akin to spousal maintenance.
3. What Cohabitants Cannot Claim
Cohabitants cannot access:
- Pension sharing or pension attachment orders.
- Maintenance for themselves.
- Full inheritance tax, capital gains tax, or SDLT reliefs available to spouses/civil partners.
Real-World Consequences
The absence of protection leaves many cohabitants in precarious positions:
- Homemakers and caregivers: A partner who sacrifices career progression to care for children can walk away from a long relationship with no right to maintenance or pension sharing.
- Unequal property ownership: If one partner pays the mortgage and holds the legal title, while the other pays household expenses, the latter may end up with nothing after separation.
- Retirement insecurity: Without pension rights, a financially dependent cohabitant can face significant disadvantage at retirement.
- Succession issues: On intestacy, a spouse inherits automatically; a cohabitant does not. Unless named in a Will, the surviving partner may have to bring a costly and uncertain Inheritance Act 1975 claim for financial provision.
- Parental responsibility: A married father automatically has parental responsibility; an unmarried father gains it only if registered on the birth certificate or via agreement.
These gaps illustrate why campaigners argue the law is outdated and unjust.
Calls for Reform
The House of Commons Women and Equalities Committee published a report in August 2022 urging reform, warning of the “growing number of cohabitants and children [being left] vulnerable.” The Government rejected its recommendations, preferring to prioritise marriage and civil partnerships.
However, at Labour’s 2023 conference, Emily Thornberry pledged to put cohabitation reform back on the table, reviving the debate. While details remain vague, options could include:
- Creating a default legal framework for cohabitants after a minimum period of living together (as in Australia and New Zealand).
- Introducing rights to maintenance or pension sharing in limited circumstances.
- Extending intestacy and tax reliefs to surviving cohabitants.
Comparative Models Abroad
Looking overseas helps illustrate possible reforms:
- Scotland: The Family Law (Scotland) Act 2006 gives cohabitants limited financial claims on separation and succession rights on death.
- Australia: De facto relationships are legally recognised, giving cohabitants rights similar to marriage after two years (or less if children are involved).
- New Zealand: The Property (Relationships) Act 1976 treats cohabitants living together for three years like married couples in terms of property division.
England and Wales stand out for offering no equivalent statutory framework.
Case Law Highlights
Judicial decisions underscore the precariousness of cohabitants’ positions:
- Stack v Dowden [2007] UKHL 17: Established principles for determining beneficial ownership when property is in one name.
- Jones v Kernott [2011] UKSC 53: Allowed courts to infer parties’ intentions regarding property shares, even if different from the legal title.
- Gow v Grant [2012] UKSC 29 (a Scottish case, but influential): Highlighted the need for English law to consider cohabitation reform, noting England’s system left vulnerable partners unprotected.
These cases reveal how courts stretch equitable doctrines like constructive trusts and estoppel, but remain constrained by outdated legislation.
Obstacles to Reform
Despite repeated calls for change, successive governments have resisted. Reasons include:
- Policy preference for marriage: Successive governments have framed marriage as the gold standard of family life, reluctant to extend similar rights to cohabitees.
- Complexity of reform: Questions arise over what threshold should trigger rights (e.g., years of cohabitation, children, joint finances).
- Administrative burden: Reform could increase court caseloads by creating new financial claims.
Still, the growing number of cohabiting families makes reform increasingly hard to ignore.
Practical Steps for Cohabitants Now
Until the law changes, cohabiting couples must take proactive steps to protect themselves:
- Make a Will – Ensure property and assets pass to your partner, rather than relying on intestacy rules.
- Life Insurance – Provides financial security for a surviving partner and children.
- Property Ownership – Register both names on the title, or record contributions through a declaration of trust.
- Cohabitation Agreement – Set out living arrangements, financial responsibilities, and what should happen on separation.
- Parental Responsibility – Fathers not married to the mother should ensure they are named on the birth certificate or enter into a parental responsibility agreement.
Conclusion
Cohabitation reform has been debated for decades without resolution. With Labour signalling renewed interest, 2024 may finally see legislative momentum. Whether reform introduces limited financial claims, a default cohabitation status, or simply better inheritance protections remains to be seen.
For now, cohabitants remain in a legal grey area—often wrongly assuming protections they do not have. Until Parliament acts, the safest approach is to seek specialist legal advice and take practical steps to safeguard your financial and family position.
At Parachute Law, our solicitors advise cohabiting couples on Wills, declarations of trust, cohabitation agreements, and inheritance disputes. Contact us today to secure your rights and protect your future.
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