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9th May 2024

Richard Kershaw discusses cohabitation law reform in Today’s Family Lawyer

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.

Cohabitation law reform in 2024

The clamour for reform of “cohabitation law” is a misnomer. Because there isn’t a codified system of law in existence that’s in need of reform; rather there’s a disjointed and unsatisfactory amalgam of legislation which combines to produce an incomprehensible, barely navigable framework. If family law in the widest sense is often described as a game of snakes and ladders, for the economically weaker cohabiting party the experience is very much one of “snakes.”

In 2024 it should be common knowledge that there’s no such thing as “common-law” marriage; that there’s no accrual of codified rights at the end of the relationship despite its duration, despite the number of children born to the couple, and (with scant exception) despite promises made.

But it isn’t.

In a 2019 British Social Attitudes survey, 46% of those questioned believed cohabitants were entitled to share assets at breakdown; 100% of them were wrong. Worryingly a similar percentage thought this in 2005, an indication that attitudes and understanding aren’t catching up with the legal reality.

If a marriage breaks down, the Matrimonial Causes Act 1973 provides a statutory framework which regulates financial provision between the divorcing couple; in summary terms, it covers spousal maintenance, lump sum (capital) payments, transfers of property (even where one party has made no financial contribution to the property in question) and pension sharing orders. The key elements of this are to be found in just one part – Part II – of the Act and span a mere six or seven pages of the published Statute. Financial provision for children is dealt with (with the consent of the parties) in the same pages, or in default by the Child Support Agency.

By comparison, the lawyer advising a cohabitant will have to consider (depending on the facts) a ground-up approach, with the starting position being one of there being no scope for financial provision unless relief can be elicited from:

  1. Schedule 1 of the Children Act 1989.
  2. The Trust of Land and Appointment of Trustees Act 1996.
  3. An analysis – very fact dependent (and therefore expensive) – of whether it can be said that there is:
    • a resulting trust
    • a constructive trust
    • some other circumstance which amounts to an estoppel

Even if the lawyer is able to identify “ladders” up which their client may climb, the client cannot claim and will not ever be entitled to maintenance for themselves or a share of their former partner’s pension. Put as its simplest, the non-financial “contribution” which has since 2020 been acknowledged in marriage (per White) is invisible and unacknowledged in a cohabiting relationship.

Is there a glimmer of hope on the horizon? Perhaps. The Labour Party has signalled its intention to reform in this area. If elected, they will not have to look far for inspiration. As long ago as 2007, the Law Commission proposed an “opt-out” scheme for couples who had cohabited for two to five years as well as all couples with a child. There’s plenty of detail to think through. How should “cohabitation” be defined? Should an “opt-out” scheme make provision for irreducible need, such that the weaker party, having “opted-out” (or perhaps having been “opted-out”) doesn’t find themselves in peril.

There’s an obvious tension in all of this between the role of the state and personal autonomy. But with 24.3% of people (Census 2021) who live as a couple doing so outside marriage or civil partnership, and therefore without codified financial protection, it is an issue which is self-evidently not just for the academics.