Cohabitation Reform and where we stand now has been a long-standing agenda item for Resolution (a body of family law professionals whose aim is to reduce conflict and work in more amicable ways, for the benefit of children of the family). Their campaigns involved highlighting to the public that there is no such thing as a common law marriage.

At the moment, couples who are not married do not have the same rights as married couples/civil partners following separation, regardless of how long they have been together. The claims they can make can sometimes be limited to the joint/shared family home or pursuant to Schedule 1 of the Children Act 1989 for support for their child(ren).

In 2023, Resolution called on the government to provide more rights for couples who weren’t married. They received support in the form of then Shadow Attorney General, Emily Thornberry, who promised the Labour government would reform the law for cohabiting couples. However, when the Labour manifesto was announced, there was little mention of cohabitation reform save for a concluding comment about strengthening the rights of women, albeit this mainly focused on issues of domestic abuse.

More recently (September 2024), in response to a question for the Ministry of Justice about invalid marriage ceremonies, Lord Ponsonby highlighted the Government’s commitment to rights for cohabiting couples and that further steps will be set out in the near future.

It seems, therefore, that changes are coming, it is just a matter of when and how.

What could the law look like for cohabiting couples in future?

There are several ways in which the Government could seek to reform the current laws to provide more rights for cohabiting couples. This could include extending current provision for children and treating cohabitees in a similar way to married couples/civil partners on death for inheritance/tax purposes.

Alternatively, there could be a complete overhaul, providing cohabiting couples with similar rights to those afforded by married couples/civil partners on separation. There are a few jurisdictions that currently have such models in place. For example in Scotland and Ireland, there is a separate statutory scheme with an eligibility criteria, where cohabitees need to prove they have had an “enduring relationship” or an “intimate and committed relationship” (in Ireland, there must be a minimum period of two years living together where there are children, and if not, five years). There must also be some proof of financial dependence and/or disadvantage. In Australia and New Zealand, if certain criteria can be met the cohabiting partner can be treated as a spouse.

The UK could choose to adopt either one or other of the above models, or choose to create one of their own with new criteria, with the option to “opt in or out” of the rules. At the moment, we await the Government’s lead on their plans.

Claims for unmarried couples can be complex and legal advice at an early stage is vital.

Top tips if you are a cohabitee

1. If you are purchasing a property together with your partner or you plan to invest in a property owned by your partner, think carefully before taking action. How would you like the ownership of the property to be recorded to reflect any contributions made? Our Property Team can help to ensure ownership is reflected accurately at the Land Registry.

2. Get an agreement in place. A Declaration of Trust can set out how you intend to own the property. A Cohabitation Agreement or Separation Agreement can further support home ownership, in addition to setting out decisions in respect of day to day costs and support of children. We can help you to negotiate and prepare the necessary documentation to record your agreement.

3. Life Insurance. If you have children, you and your partner should consider life insurance policies to protect your children’s future, should anything happen to either of you.

4. Think about making a will.  If you are not married to your partner you will not be their next of kin for inheritance purposes.  If one of you were to die and had not made a will then the deceased’s estate would not automatically pass to the survivor.  This is particularly important if you own a property together under a declaration of trust.  If you do not have a will making your partner your beneficiary either outright or with some sort of life interest you could find as the survivor that you have little or no entitlement to your deceased’s partner’s estate and you could end up owning your home if it is held under some sort of declaration of trust with some third party such as your partner’s children from a previous relationship, parents or siblings.  Our specialist wills team at Wollens would be able to assist in the preparation of a suitable will to cover all of these possibilities and issues

5. Ensure your marriage is valid in the UK. It is not well known that some religious ceremonies are not always registered as valid marriages in the UK. This can often lead to confusion and stress, particularly if you are only finding this out on separation. It is important to ensure your marriage is properly registered and recognised as a valid marriage in the UK, if you wish to have the rights that married couples currently have in the UK.

6. Keep a record. If you are already cohabiting, keep a record of receipts, bank statements, cheque books etc. relating to home expenses, how the property was purchased and any improvements made. Make sure to record any discussions regarding your interest in the home, whether this be by text message or email. Bear in mind, some institutions i.e. banks/law firms, have a limit on how long they keep your records before they are destroyed. You should retain any important documentation for safe keeping.

If you are in a cohabiting relationship and wish to protect your property or if your relationship is on the verge of breakdown and you need advice, then please do not hesitate to contact our specialist team. We are here to support you and will continue to update you on the latest changes in the law.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.