To many family lawyers’ disappointment, the King’s Speech on 17 July did not include cohabitation law reform in Labour’s upcoming legislative programme. With estimates that there are now around 3.6 million couples living together outside of marriage or civil partnership in the UK, it is increasingly clear that the current law is not fit for purpose.

In the first half of this two-part article, Victoria Lee Domenech and Sarah Havers looks at the Labour Party’s potential U-turn on the issue of reform, the rise of cohabitation and the state of the current law.

What has Labour said to date about cohabitation reform?

During the Labour Party Conference in October 2023, Emily Thornberry MP gave family law practitioners hope of the possibility of cohabitation reform. Many interpreted her speech as confirmation of Labour’s intention to review the current law, with Ms Thornberry saying: “For too long, women in cohabiting couples have been left with no rights when those relationships come to an end. If there is no joint property or shared parental dues, a man can leave his partner with nothing, especially if he has the means to take it to court.” Resolution, the largest organisation of family law professionals in England and Wales, welcomed the announcement, noting that significant financial hardship was being caused to cohabiting couples by outdated legislation.

Just a year later, Labour’s 2024 manifesto appeared to dilute Ms Thornberry’s pledge, leading to widespread disappointment among practitioners about the lack of a clear pathway for reform. The manifesto referred to tackling violence against women and strengthening the rights of women in cohabiting relationships but did not elaborate on the issue any further. Crucially, it remained silent on the introduction of broader financial protections for cohabiting couples, a potential departure from Ms Thornberry’s promise of a year earlier. However, in light of the long-standing need for sweeping reform, many family practitioners remained hopeful that cohabitation would be back on the table if the Labour Party came into power. Unfortunately, while the King’s Speech proposed several pieces of legislation aimed at improving the lives of families, it did not address the issue of unmarried couples.

In the first half of this two-part article, we look at the rise of cohabitation and the current state of the law. Our second article will consider how we got here, past (unsuccessful) attempts at changing the law and the case for reform.

The rise of cohabitation in the UK

According to the Office for National Statistics’ 2022 bulletin, opposite-sex cohabiting couples have been the fastest-growing family type over the past 10 years. Its 2021 Census estimated that 24.3% of couples in England and Wales were cohabiting, representing an increase in all age groups under 85. In addition, 2021 was the first year in which the number of children born to unmarried mothers (51.3%) outweighed those born to mothers in a marriage or civil partnership.

It is, therefore, perhaps unsurprising that the total number of cohabiting couples in England and Wales has increased by 144% in just 25 years, from around 1.5 million in 1996 to around 3.6 million in 2021. In contrast, overall marriage numbers decreased by 20.8% between 1992 and 2022, with the Institute for Family Studies concluding that marriage in Britain will likely “fizzle out” in the second half of this century.

Adding to the concern, the National Centre for Social Research’s 2019 report found that 49% of British adults living with a partner outside a marriage or civil partnership believe in common law marriage. Also known as the “common law marriage myth”, this is the misconception that cohabiting couples automatically gain equal rights to those in a marriage or civil partnership by virtue of living together. The data suggests that “almost half of cohabiting couples in Britain wrongly believe themselves to be legally protected in case of relationship breakdown or bereavement”. Public awareness campaigns and extensive media coverage about the difficulties that unmarried couples face have done little to improve the situation, with the 2019 figures representing only a 9% drop from when the question was asked to all couples in 2000.

The current (very limited) legal rights of cohabitants

In light of these statistics, many consider that it is time the law was amended to accommodate all types of families. Unfortunately for cohabitants, current legal protections are scarce.

With regards to property solely owned by one of the parties, the other party will likely have to rely on the Trusts of Land and Appointment of Trustees Act 1996 to try to establish a beneficial interest in the property, which can often involve a difficult, expensive and technical legal process. If the couple has children (usually) aged under 18, a parent may seek a capital provision for housing with an application under the Children Act 1989. However, any remedies awarded will likely be temporary until the child’s majority or the end of full-time education, after which the capital sum will revert to the payer. For couples without children, in the absence of an express declaration of trust in favour of the non-owning party, establishing a beneficial interest in the property is an area that requires specialist expertise.

Those with children under 18 may have additional financial claims in respect of the children by virtue of being a parent or carer. If child maintenance payments cannot be agreed in the event of separation, applications may be made in certain circumstances for child support under the Child Support Act 1991 or Schedule 1 of the Children Act 1989. For other decisions in relation to the welfare of the child, the course of action may depend on whether the party already has parental responsibility. While a mother will be granted automatic parental responsibility for the children from birth, an unmarried father will need to be registered on the birth certificates or successfully apply to court. Separate legislation applies to those cohabitants who parent non-biological children.

Cohabitants also do not have the same financial protections upon the death of one of the parties. Where the couple lived together for two years immediately before the death, and the deceased’s will or law of intestacy does not make reasonable financial provisions for the surviving cohabitee, they may be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for “reasonable” maintenance. Any awards made under this Act will likely be significantly smaller than the amounts due to widowed parties of a marriage or civil partnership.

Cohabitants can agree to stronger protections than those outlined above by entering into a binding cohabitation agreement during the relationship, but these documents must be carefully drafted to be enforceable. Although the number of cohabitation agreements being entered into is increasing, they are still relatively uncommon. Not only are millions of cohabitees likely unaware of the fact that they can (and, in most cases, should) enter into these agreements, but such contracts can be difficult to enter into when couples have significant power or financial imbalances, even if arguably, this is when protections are most needed.

Partner Matthew Humphries, who sits on Resolution’s Cohabitation Committee, comments;

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