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The Family Team at Leathes Prior are all members of Resolution. Resolution represents 6,500 family justice professionals who encourage a non-adversarial approach to resolving family issues and campaign for a better family justice system.

In November 2022, Resolution asked its members share their views about the changes they would like to see to the family justice system. The vast majority responded that cohabitation reform should one of be the priorities. In a recent publication, Resolution explained its proposals for reforming the law relating to cohabitating partners.

Current Legal Position

Cohabiting couple families now account for almost 1 in 5 families in the UK, and opposite-sex cohabiting couples have been the fastest growing family type in the last 10 years.

However, unlike when a marriage ends, there is no legal framework which governs what should happen to an unmarried couple’s finances when they separate. Married couples can bring financial claims against one another on separation to ensure that, among other things, moving forward their needs can be met. The separation of cohabiting couples is generally governed by trusts of land and property ownership law. This potentially leaves one party in a financially vulnerable position, even if they have been together for decades.

Proposed Reform  

• Resolution calls for a legal framework of rights and responsibilities for when cohabiting couples who are not married or civil partnered separate. This is to provide legal protection and secure a fair outcome for the parties. Resolution proposes the following:
• Cohabitants meeting an eligibility criterion indicating a committed relationship would have a right to apply for financial remedies. This right would be automatic and on a ‘opt out’ basis.
• The Court should be able to make the same types of orders as they do for divorce or dissolution, but on a different and limited basis.
• Cohabitants should be able to apply for maintenance for a limited period to account for the economic imbalances. It would enable a cohabitant to adjust to the loss of financial support before becoming self-supporting.
• Upon the death of a cohabiting partner, their partner should have an entitlement under rules of intestacy, subject to conditions. Cohabitants should also be treated in the same way as married couples and civil partners for tax purposes on death.
• A review of the Children Act 1989 is required to ensure the needs of children in a cohabiting family are met in the same way as children of a married relationship.

Resolution’s Reasons for Reform

There are many reasons why family justice professionals believe that a reform to cohabitation law should be a priority, and why the current approach is not fit for purpose. A large number of these are explored in Revolution’s ‘Vision for Family Justice’, with some summarised below:

• The application of property law is inappropriate for unmarried families. The outcomes are uncertain and case specific, resulting in high costs and often unfair results.
• Parents who take on a larger share of the caring responsibilities can be left without any financial support. Under current law, even couples with children who have lived together for a very long time do not have any financial responsibility for each other.
• The lives of cohabiting couples are no less intertwined than the lives of a married or civil partnered couple. They share financial and parental responsibilities in much the same way. However, on the breakdown of a relationship, there is no mechanism to recognise these responsibilities or determine how assets accrued during the relationship should be shared.
• For couples who have a religious marriage, such as an Islamic marriage which is not recognised in the UK, they are treated as unmarried and have very little legal protection despite living together for many years. A reform to cohabitation law would help address the need for protection for those in a religious marriage.
• The law should provide for all types of families. Fewer people are getting married and the number of cohabiting couples is continuing to rise.
• Children should be treated the same in law regardless of the form of their parent’s relationship.
• Many cohabitants wrongly believe they have a ‘common law’ right. This puts the economically weaker party in a cohabiting relationship at a disadvantage should they separate.
• Under the present law, cohabitants have no entitlement on the death of a partner without a Will and so can only bring proceedings under the Inheritance (Provision for Family and Dependants) Act 1975. This has a high emotional and financial cost, particularly in cases where there was financial dependency.
• Cohabiting couples are treated as unconnected individuals and do not benefit from the same exemptions as married couples and civil partners for Inheritance Tax.

The reform to cohabitation law is just one of Resolution’s proposals for change to family justice. Details of the other proposals can be found here.

If you have any questions in relation to cohabiting laws, we will be happy to have a no obligation consultation to discuss your situation. Please contact our Family Team on 01603 610911, email us at info@leathesprior.co.uk or get started via our online tool here.