The Ministry of Justice’s recent consultation on strengthening the rights of unmarried couples represents one of the most significant proposed changes to family law in a generation. For those of us working in family law, it is a development that has been anticipated for many years.
The reality is that family life in England and Wales has changed dramatically, but the law has struggled to keep pace.
Today, millions of couples choose to live together without marrying, for a variety of reasons. For some, the cost of a Wedding is a barrier, for others modern day life gets in the way and some simply prefer not to formalise their relationship. Whatever the reason, what many cohabitees do not realise is the potential financial impact this decision may have. Cohabitees often have a misguided view that there is a “common law” marriage, that gives rights similar to those of married couples but the reality is that the rights of unmarried couples are limited.
One of the most persistent misconceptions we encounter is the belief in the concept of a “common law marriage”. No such legal status exists in England and Wales. Cohabiting couples currently have very limited rights if their relationship breaks down, regardless of how long they have lived together, the sacrifices they have made for their family, or the financial contributions they have made during the relationship. This can lead to outcomes that many would consider unfair.
I regularly advise individuals who have spent years raising children, often sacrificing their careers to be the homemaker and support their partner’s career, only to discover that they have far fewer legal protections than they expected when a relationship ends. Often, people are surprised to learn that their claims are limited to property and financial provision for the children, and these claims are not automatic.
The Government’s consultation seeks to address some of these issues. Among the proposals being considered are greater financial protections for qualifying cohabiting couples on separation, stronger rights for surviving partners when a loved one dies without a Will, and enhanced recognition of domestic abuse, including coercive and economic control, when financial arrangements are assessed.
These proposals reflect an important acknowledgement that modern families come in many forms and that the law should offer appropriate protection to those who may be financially vulnerable when relationships end.
However, reform must be approached carefully.
Marriage and civil partnership continue to hold a distinct legal and social status. Any new framework for cohabiting couples must strike a balance between protecting vulnerable individuals and respecting the choices of those who deliberately decide not to marry. Encouragingly, the consultation recognises this distinction and suggests a separate legal framework rather than simply extending the rights of marriage to cohabiting couples.
Whatever form the final reforms take, one thing remains clear: the current law leaves too many people exposed.
Whilst the wheels are in motion for change, any changes are likely some way off for now. Until then, cohabiting couples need to be aware that their rights may be limited, regardless of how long they have been together, what they have contributed or what they have forgone during the relationship.
Taking proactive steps such as entering into a declaration of trust and cohabitation agreement to provide some certainty and protection may be invaluable. A declaration of trust is limited to dealing with property ownership, but a cohabitation agreement is a tailored document that can go much further, detailing the practical arrangements both during the relationship and on separation.
The Government’s consultation presents a rare opportunity to modernise family law and better reflect the realities of contemporary relationships. As family lawyers, we see first-hand the difficulties created by the current legal framework. If reform can provide greater clarity, fairness and protection while preserving individual choice, it will be a welcome step forward.
The law should reflect how people live today, not how they lived decades ago.
Charlotte Davies is a Family Law Solicitor at Harrogate Family Law, advising clients on all aspects of relationship breakdown, including divorce, financial settlements, cohabitation disputes, private children matters and pre and post-nuptial agreements. Charlotte is passionate about helping clients navigate difficult periods in their lives with clear, practical advice and a supportive, client-focused approach. She has a particular interest in the evolving legal landscape surrounding modern families and relationships, including the rights of cohabiting couples and family law reform.
