The Labour Party went into the 2024 general election with a short but clear declaration on one of the thorniest topics in the field of family law: cohabitation. Amidst a raft of manifesto pledges to protect women, the party promised to:
“…strengthen the rights and protections available to women in co-habiting couples.”
The statistics
For decades, a popular misconception held sway that if you lived with a person for a period of time, you became their ‘common law’ spouse, and thereby held certain rights if the relationship broke down. But this myth is finally starting to fade: the ‘common law spouse’ does not exist in English law, and with only limited exceptions, rights like inheritance or financial support depend on a legal marriage. But curiously perhaps, alongside an increasing awareness of these realities, cohabitation has taken off like the proverbial rocket, changing in recent decades from a rarity to the norm. Cohabitation is now the fastest growing family type in the UK according to the Office for National Statistics. In 2022, the latest year for which figures are available, 18 per cent of all opposite sex households were made up for cohabitees: around 3.6 million families in total, an increase of 0.7 million in just ten years.
Gone are the days when couples moving in together married by default. Now the majority ‘try before they buy’ and marriage is considered an optional extra – something the couple might do at a later stage, when both are confident that they are compatible and the relationship has staying power. But if they decide not to bother, they may continue living together for years, even decades, without ever making the relationship official. Sadly, it is not unknown for one partner to be interested in the idea of marriage, but face opposition from the other. In those circumstances love and loyalty leads many would-be spouses to stay with their partners anyway.
But what happens if that relationship eventually fizzles out or breaks down? If one partner is economically dependent, or their capacity to earn is limited, and their boyfriend or girlfriend then chooses to be difficult, they may be in real difficulties – and the longer the relationship has continued, the greater those difficulties are likely to be.
The context
The Labour manifesto presents cohabitation rights as a purely female issue. It is certainly a problem that affects women the most, for one simple reason: women are more likely to work part time or put their careers completely on hold to focus on motherhood.
But strictly speaking this is a gender-neutral issue. Both husbands and wives can be disadvantaged by long-term cohabiting relationships if their partner was the high earner of the household, the proverbial breadwinner. Stay-at-home Dads and high-flying career women are no longer the mythical creatures they may once have been.
The Scottish approach
These restrictions are not universal across the country. Scotland takes a different approach. North of the border cohabitees do have rights, albeit limited ones, in the event the relationship comes to an end. They can, for example, make certain claims against their former partner, for example:
*A lump sum for the purpose of financial support.
*Household items if they can demonstrate ownership.
*A contribution to the cost of raising children.
Claimants must make their case to a judge, and each case is assessed on the couple’s individual circumstances and the duration of the relationship. Claims are also subject to strict time limits. In other words, these are not the full financial rights held by married couples, but they do at least provide a degree of protection for the most vulnerable.
Possible reform in England and Wales
Meanwhile, financial rights for cohabiting couples have been a contentious issue this side of the Scottish border for years. While campaigners seek better protections for the financially dependent partner in cohabiting couples, others stress their right not to marry if they wish to avoid financial obligations to their former partner. For them, the whole point of avoiding the registry office in the first place is side-stepping the monetary burdens associated with divorce, like asset sharing and spousal maintenance. To those with this perspective, typically wealthier men, the introduction of financial rights for cohabitating partners may seem like a real imposition, a reintroduction of monetary burdens they’d hoped to avoid.
Nevertheless, the tide may finally have turned. Labour was voted into office with a huge mandate and a clear commitment to cohabitation law reform. While we await the announcement of specific plans, the government’s own MPs are urging the government to get on with the task. Earlier this year, Andy Slaughter, Labour MP for Hammersmith and Chiswick and Chair of the Justice Select Committee, wrote to Lord Ponsonby, Parliamentary Under Secretary for the Ministry of Justice, urging progress on the issue. He insisted:
“The lack of rights for cohabiting couples means millions of people – often women and the most vulnerable in our society – are at serious financial risk. Campaigners have been repeatedly told to wait. Most recently, in response to the Women and Equalities
Committee’s report, the previous government indicated that reform could not be explored until existing work on the law of marriage and divorce has been concluded. However, these issues are distinct and should not serve as a barrier to progress for cohabitation reform.”