Cohabitation, whereby partners live together as a couple without getting married or entering a civil partnership, has become increasingly common in the United Kingdom, and is the fastest growing type of family arrangement. In recent years, there has been much debate about whether the UK should change its laws surrounding cohabitation. Currently, cohabiting couples have significantly fewer legal rights and responsibilities compared to their married counterparts. There have been different schools of thought on this topic as to whether couples should have to opt-in, or opt-out of being able to have rights in a cohabiting relationship. There have been pros and cons advanced over a considerable time depending on these differing points of view.
One of the most significant advantages of changing cohabitation laws, it has been argued, is that it could provide clearer and enhanced legal protection for cohabiting couples. Currently, if a cohabiting relationship ends, there is limited legal recourse for dividing property, assets, and finances. Many cohabiting couples do not realise that there is no such thing as being a ‘common law’ spouse, and can wrongly rely on this misconception, only discovering to their detriment that this does not exist in legal terms when their relationship ends. Changing the law could offer some form of financial security for individuals who have lived together for a certain duration with an option to ‘opt-out’ of this, if couples wish to.
Altering cohabitation laws would also allow, some point out, a more equitable distribution of assets in the event of a relationship ending. This can help prevent one party from being unfairly disadvantaged, and ensure that both individuals receive a fair share of property and financial assets that may not otherwise be the case without reform.
In addition, when cohabiting couples have children, changing the law could offer legal safeguards for the children’s well-being. It could provide access to financial support, inheritance rights, and other benefits, ensuring that the children are not disadvantaged due to their parents’ unmarried status. Moreover, the current legal framework was established when marriage was the predominant form of partnership. Changing the law for cohabitees would, it has been suggested, better reflect the realities of modern relationships where many couples choose not to marry.
A further benefit, some would say, is that having a proper legal framework in place would lead to less dispute and litigation, as there would be parameters that would allow separating couples to know where they stand, and what the law says, lessening the need to ask the Court to consider situations that relate to property and trusts related concepts, that can be protracted and expensive.
Conversely, some argue that contrary to legislative reform reducing the potential for litigation, changing cohabitation laws may introduce more access to litigation, leading to disputes over property and asset division that may not otherwise have been available by way of recourse, if couples do not agree what should happen on separation, and that this could result in additional burdens on the legal system and costs for couples seeking resolution.
In addition, critics of reform argue that individuals have the freedom to choose whether or not they wish to formalise their relationship through marriage or civil partnership, and should not have to ‘opt-out’ of legal obligations in this respect if they choose to cohabit. They argue that changing the law may infringe upon this personal freedom by imposing legal obligations on cohabiting couples that they have not chosen to formalise. Moreover, some argue that instead of changing the law, individuals should be encouraged to enter into cohabitation agreements voluntarily. These agreements allow couples to define their rights and responsibilities, providing flexibility and customisation according to their specific circumstances. There is also concern, expressed by some, that making cohabitation more legally binding could discourage couples from getting married. Marriage rates have already been declining, and changing the law may further contribute to this trend, with potential implications for what some have argued are traditional social and family structures.
There is, then, an ongoing debate around this long running issue, which appears set to continue keeping it on social and political agendas. The pros and cons of changing cohabitation laws in the UK reflect the complexity of this issue. From one perspective, legal protection and security for cohabiting couples and their children appear to offer significant advantages. Whereas from the other perspective, there are concerns about the impact on personal choice and declining marriage rates. There may well not be a one size fits all answer, but the campaign for reform remains on the agenda. Whatever the eventual outcome, until such time as there is a formal change in the law, cohabiting couples should seriously consider having a cohabitation agreement in place, so that if they do decide to separate, they may be in a position to minimise any dispute, and protect their positions as best they can within the current limitations.
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Author: Sarah Wyburn
Published: 25/10/23