Richard Kershaw discusses cohabitation law reform in Today’s Family Lawyer
Richard’s article was published in Today’s Family Lawyer, 8 May 2024, and can be seen here.
Richard Kershaw, Partner in our Family & Relationships department, highlights the pressing need for reform in cohabitation law, pointing out that the term itself is misleading.
Richard explains there is no unified legal framework governing cohabiting couples, only a patchwork of outdated and inconsistent legislation. This creates a legal minefield for those seeking clarity or protection after a relationship breakdown. Despite widespread belief in the concept of “common-law marriage,” no such legal status exists in the UK. Many people mistakenly assume that long-term cohabitation or having children together grants legal rights similar to marriage, but this is not the case, leaving the economically weaker party particularly vulnerable.
Unlike married couples, who benefit from the clear provisions of the Matrimonial Causes Act 1973, cohabitants must navigate a complex and uncertain legal landscape. Legal remedies for cohabitants are limited and fragmented, relying on statutes like Schedule 1 of the Children Act 1989 and the Trusts of Land and Appointment of Trustees Act 1996. These require costly and fact-specific legal analysis, often involving trusts or estoppel claims. Even when successful, cohabitants cannot claim spousal maintenance or pension sharing, and non-financial contributions such as childcare or homemaking are not legally recognised, further entrenching inequality.
There may be hope for change, as the Labour Party has expressed intentions to reform cohabitation law if elected. They could draw on the 2007 Law Commission proposal for an “opt-out” scheme, which would offer protection to couples who have lived together for a certain period or have children. However, key questions remain, such as how to define cohabitation and how to balance personal autonomy with state intervention. With nearly a quarter of couples in the UK living outside of marriage or civil partnership, the need for reform is not just academic, it’s a matter of social justice and legal clarity.
Read the full article on the Today’s Family Lawyer website [external link].