Do the Laws on Cohabitation need reforming?
Fri 10 February 2023
With Family law already seeing a long overdue change with the start of no-fault divorce, it does raise questions as to other areas of family law that require input as a matter of urgency.
Why does cohabitation law need reform?
Currently, the law governing the area is inflexible with the courts often only considering jointly held assets and how they are legally owned. Only where there is evidence that the person has acted to a detriment can the court go beyond this. oohabitation law fails to take proper consideration of need including, children, pensions and a disparity of income.
The latest figures report there were over 3.6 million cohabiting couples in the UK. These figures have almost doubled since 1996. With figures rising year by year and many calling for change, the Law Commission in 2007 carried out a report which made a number of recommendations and proposals for change. This article looks at why those changes are still needed to be made 16 years on.
The report called for reasonable financial provision for separating couples for both those who have children together or those living together for a period of 2 years or more. It recommends an amendment to the Inheritance (Provision for Family and Dependents) Act 1975 to allow for claims to be brought following a cohabitants death and for claims to be able to be brought in relation to pension provision. These are all seen as significant holes in the current system.
It should not permit for any person to be disadvantaged and for only one side to receive benefit.
How to legally protect yourself if you are cohabiting
Of course, all of these protections do exist but only for married couples. A ceremony can make a world of difference between having rights and protection and not. This information for a number of people is not realised until separation. This can in turn lead to an individual becoming significantly disadvantaged. Currently, there are some ways to provide a degree of protection. This can include:
- The preparation of a Cohabitation Agreement -This acts in a similar way as a prenuptial agreement to hopefully protect a couple before they separate.
- A Separation Deed- can be prepared to set out how a couple agree to separate assets or provide for each other after they have separated. Such agreements can be prepared quickly and provide a degree of reassurance.
However, this does not take into account the greatest difference between married and unmarried couples, which is the legal protections that married couples have and unmarried couples need. The courts within financial remedy proceedings (for married couples) say that the starting point in dividing a martial pot for a relationship of any length is equal division. This is then departed from on a need’s basis. So, for example if one party earns a significant amount less than the other, they are likely to have a greater need for more of the martial pot. If children are involved, the party whom has the children, has a greater financial need. The same legal process is not followed within cohabitation proceedings.
On 4th August 2022, the House of Commons Women and Equalities Committee published its report on the rights of cohabiting partners. It recommended reform of family law “to better protect cohabiting couples and their children from financial hardship in the event of separation”. This has however been rejected as the government has confirmed that they currently need to complete work on marriage law reform before progressing to consider unmarried couples.
Graeme Fraser, Chair of Resolution’s Cohabitation Committee, said: “We are bitterly disappointed that the Government has today rejected any meaningful action that would give cohabiting couples the basic legal protections they urgently require.”
Law reform is important and as so many more couples cohabit rather than marry in the UK, the proposals brought forward by the Law Commission should be reconsidered again due to the inadequate protections it provides cohabiting couples.
Despite this, solicitors can provide a degree of protection for cohabiting couples by preparing agreements prepared by solicitors.