Emily Thornberry, the shadow Attorney General has promised that if the Labour party get into government, cohabiting couples will receive the same rights as married couples if their relationship ends. This is following rejection of reform by the current Government in November 2022.
Despite recommendations to reform the law relating to cohabitation made by the House of Commons Women and Equalities Select Committee in its report on The Rights of Cohabiting Partners, the current Government rejected the recommendations in November 2022.
A key recommendation in the report was to establish an opt-out cohabitation scheme which was first proposed by the Law Commission in 2007. The scheme called for the introduction of remedies for cohabitants who had lived together for a specified period of time or had a child or children together.
England is now lagging behind countries such as New Zealand, Scotland and Ireland who have already reformed their laws to offer extra protections to cohabiting couples who have lived together for a period of time or have had a child together. Reform in England is now long overdue.
What is cohabitation?
There is no single, legal, definition of cohabitation. For most people, cohabitation is defined as the act of living with someone you are not married to or in a civil partnership with in the same household.
Cohabitation is now the fastest growing type of family with approximately 3.6 million couples currently living together in the United Kingdom. Approximately 1 in 5 couples are now choosing to live together in a stable intimate relationship, without getting married or entering into a civil partnership. It is predicted this figure will rise to 1 in 4 by 2031.
Despite its popularity, cohabitation gives no general legal status to cohabiting couples, unlike marriage and civil partnership. When a relationship breaks down, cohabiting couples are forced to rely on a wide array of law ranging from property, trusts, and contract to determine what they are entitled to. Even upon death, cohabitees do not automatically inherit from their deceased partner. For couples who are living together or have shared assets, this can lead to insecurity and uncertainties in their relationship.
The myth of common law marriage
The report also noted there is still a common misconception that if a couple have lived together for long enough, they are effectively treated as married under the law and automatically gain rights equal to a marriage or civil partnership. This is false and is known as the “common law” marriage myth.
If you cohabit rather than get married or enter a civil partnership, you DO NOT receive the same level of protection as a couple in a marriage or civil partnership. In general terms the current law treats you as two unrelated individuals.
The current law relating to cohabiting couples and property rights states you have:
- no automatic rights to your partner’s property in the event of their death
- no automatic entitlement to inherit their estate, even if you have children.
- no tax reliefs or exemptions that spouses and civil partners enjoy, including pensions.
- No rights to be financially supported by your partner.
Basically, neither party in a cohabiting relationship is entitled to any financial support or a share in the other’s assets if the relationship ends. This helpful video by Resolution called Cohabitation Nation explains the legal realities for cohabiting couples.
What is the current solution?
Currently, the only way for cohabiting couples to put their legal affairs in order and gain legal protection in the event of a break-up is to:
- Get married.
- Enter into a civil partnership.
- Enter into a Cohabitation Agreement.
No couple should be forced to get married or enter into a civil partnership just to obtain the same legal rights. This leaves the Cohabitation Agreement.
A Cohabitation Agreement (sometimes called a living together agreement) can grant cohabiting couples legal protection, allowing them to legally define and protect their share of the property, and other financial matters in the event they decide to end the relationship.
An agreement can specify the ownership of existing assets (including property), and the financial responsibilities each cohabitee has towards the other and how savings and jointly owned assets will be distributed should their relationship break down.
A Cohabitation agreement is currently the only way for a cohabiting couple to clarify their assets and intentions before moving in together. It encourages a couple to think about fair ways to organise their finances and what will happen if their relationship ends.
More about Cohabitation Agreements
What should a cohabitation agreement include?
A cohabitation agreement is a legally binding contract between two individuals who are living together but are not married or in a civil partnership. It sets out any terms relating to their living arrangement and can include a wide range of provisions related to financial, practical and property matters.
When should I get a Cohabitation Agreement?
Ideally you would make an agreement prior to moving in together, but there is nothing stopping you from making an agreement at any time during your cohabitation.
What are the benefits of a cohabitation agreement?
An agreement can provide peace of mind in your relationship. It can help to avoid the kind of arguments and minor worries that can build up over time or that might cause difficulties in the future. By reaching an agreement before or whilst you are living together, you will:
- have a clear understanding of what your financial commitments are.
- avoid misunderstandings regarding your rights and responsibilities as you continue to live together, with regards to ownership of property
- avoid difficulties and disagreements if you split up.
- have clear evidence of your intentions should a dispute ever arise.
An agreement can also be useful if one of you becomes seriously ill or dies. It will protect you both, and any other family members who will be affected.
For example, an agreement can make sure you have:
- a share of each other’s assets
- access to each other’s state pension
- next of kin rights in a medical emergency
How long does a Cohabitation Agreement take?
Provided both parties are in agreement a Cohabitation Agreement can be prepared within a couple of weeks.
Are cohabitation agreements legally binding in the UK?
A cohabitation agreement is a legal document, enforceable by the Court if it is properly executed and providing you have both been open and honest about your finances and each obtained legal advice upon its terms.
Can a cohabitation agreement be modified after it is created?
Yes, an agreement can be modified once it has been created. It is advised that you keep it updated as your relationship changes or if anything significant happens in your relationship. Key reasons may include the following:
- The birth of children
- One of you becomes seriously ill.
- One of you becomes disabled.
- One of you is made redundant.
- Your financial circumstances change significantly.
- One of you receives a large inheritance.
- You plan on getting married or entering a civil partnership.
The future….
A changing and modern society has led to the reform of divorce law by the introduction of no-fault divorce. Similar reforms must also be made for cohabiting couples. Our neighbours of Scotland and Ireland both legislated to provide remedies to cohabitants upon relationship breakdown in 2006 and 2010 respectively. England must now follow.
Other frequently asked questions
Am I entitled to my partner’s pension if we were not married?
Generally speaking, unmarried cohabiting couples do not have any right to benefit from their partner’s pension, unless they are formally named as a “nominated beneficiary”. Although in respect of the Local Government Pension Scheme, there is currently an exception to this rule.
Can my girlfriend claim half my house?
A person who is not married or in a civil partnership has no automatic claims on property. It may be possible to make a claim under the laws of property, trust or contract depending on the facts and whether any financial contributions were ever made.
Does a Cohabitation Agreement still stand if we get married?
If you get married, you will automatically receive the legal protection of the laws relating to married couples and couples in a civil partnership.
Are you legally married after living together for 7 years?
No. You are only legally married once you:
- Have a civil ceremony.
- Have a religious or belief ceremony.
- Converting your existing civil partnership to marriage.