In last month’s publication of our journal, there was an article on the “Top Three Legal Myths’, which included the myth regarding cohabitation, i.e. of there being no such thing as a ‘common law wife’, or a ‘common law husband’, or indeed a ‘common law marriage’, that is to say a couple who are living together, with or without their children, and are not married or under a civil partnership. As was shown, the conception of such a thing is, in fact, a misconception – and it can be a serious one at that. If that relationship breaks down, such couples have extremely few rights when it comes to aspects such as finances, property and most seriously of all, the children of their relationship,
The breakdown of a marriage or a civil partnership can be extremely difficult, but can be relatively simple compared to the breakdown of a cohabitating couple (whether opposite, or same sex).
The problem is far from a small one. Recent government figures show that of all UK couples who live together, as many as 22% are cohabiting rather than being married or in a civil partnership, and these total over three million couples (*see Commons Library Research Briefing, 3 November 2022). Indeed, The Women and Equalities Committee (one of the Government Select Committees, which holds the government to account in respect of equality law and policy affecting women), has found that the number of cohabitating partners in England and Wales is rising, with over 3.4 million partners cohabitating in 2020. This is an increase from 1.5 million in 1996. That is a lot of couples who have very, very few rights.
Caroline Nokes, who is currently the Chair of the Committee has recently stated that ‘Given that cohabiting couples are the fastest growing family type in England, it is surprising that they do not share the same legal rights as others.’
It is, indeed, surprising, especially in view of the fact that the government have taken huge strides over the past 20 or so years to regulate those who want to get married or to enter into a civil partnership. It started with the Civil Partnership Act in 2004 which concentrated on same-sex relationships and then extended these relationships to include same-sex marriage. So is cohabitation on its way to be recognised in the same way as civil Partnerships and same-sex marriages? The answer is in the negative – ‘no!’
In 2007, the Law Commission published a report which recommended that these kinds of relationships, especially the financial side of them, should be introduced. However, the then Labour Government announced that it would be taking no action to implement any of the Law Commission’s recommendations. There was some activity in 2009 when the Law Commission published a consultation paper titled “Intestacy and Family Provision Claims on Death”. Section 8 of this paper gave recommendations in respect of Cohabitation. The Commission’s final report included two draft bills, one of which was the draft ‘Inhabitants (Cohabitants) Bill.’ Unfortunately, the Coalition Government then later announced that it had decided that the Law Commission’s recommendations would not be implemented during that period of Parliament. Almost 20 years later it has still not been implemented!
That, more or less, remains the position. Is it that important? After all, ‘cohabitation’ has been around since living memory. Well, the Chair of the Family Law Group ‘Resolution’, recently said: “The lack of rights for cohabiting couples means that millions of vulnerable people are at significant financial risk if their relationship ends or their partner dies.”
If you would like to read more about “Common Law Marriage’ and ‘cohabitation”, look it up online at:
https://commonslibrary.parliament.uk/research-briefings/sn03372/
So, what are cohabitants to do whilst parliament dilly-dallies over this important part of Family Law? Well, the safest bet is for the cohabiting couple to enter into a ‘Cohabitation Agreement” in the form of a Deed, setting out the rights of both cohabitants. Just enter ‘Cohabitation Agreement templates’ into your search engine to give you a much broader idea of what is involved.
John Stacey-Hibbert LLB, LLM