Increase in cohabitation leaves many without legal protection

Married couples remain the most common type of family but there has been a dramatic increase in cohabitation. This can leave many without legal…

The Office for National Statistics released a bulletin in Autumn (2017) entitled Families and Households in the UK: 2017, illustrating trends in living arrangements in the UK including families (with and without dependent children), people living alone and people in shared accommodation, broken down by size and type of household.
Key findings include:

  • An increase in the total number of families in the UK.
    Unsurprisingly, the total number of families in the UK has increased from 16.6 million in 1996 to 19 million in 2017 – a 15% increase.
  • Marriage remains the most common type of family unit.
    There were 12.9 million married or civil partner couple families in the UK – which remains the most common type of family unit.
  • Cohabitation is gaining in popularity.
    Cohabiting couple families were the fastest growing family type between 1996 and 2017, more than doubling from 1.5 million families to 3.3 million families.
  • Same sex couples accounted for 1% of all couple families.
    The largest number of same sex couple families were same sex cohabiting couple families, 101,000; this was followed by civil partner couple families, 55,000 and same sex married couple families, 34,000.

Increase in cohabitation

Although married couples remain the most common type of family unit, there has been a dramatic increase in cohabitation.

Emily Knipe, Population Statistics Division, Office for National Statistics, said:

"In 2017, the most common family type in the UK was the married or civil partner couple family (12.9 million families). Opposite-sex couples were most likely to be in married couple families whereas same-sex couples were most likely to be in cohabiting couple families. This is likely to be because civil partnerships and marriages between same-sex couples in particular, are relatively new legal union statuses."

While many opposite sex couples cohabit with a view to marrying in the future, others choose deliberately to live together and 'opt out' of marriage. The same applies to same sex couples, who currently they have the option of civil partnership as well as marriage if they seek to formalise their relationship.

There remain significant distinctions between the legal status of a married and unmarried couple which are not always fully appreciated by the couple themselves, professionals advising those couples or society at large.

Fiona Turner is a Partner in the family law team.

The Myth of the Common Law Spouse

It remains a popular misconception‎, often erroneously promoted in certain aspects of the press and media, that once a couple have lived together for two, five or more years, they acquire the status of a 'common law spouse' and with it, financial remedies on separation arising from their relationship. This is wrong, and we, as family law professionals, continue to work hard to dispel that myth.

It is wrong to say that in all situations, a cohabitant has no legal rights in the event of a relationship breakdown, but the legal remedies are extremely restrictive and based solely on the law of property and trusts, rather than any element of fairness/discretion, as would apply on a divorce. Unless the couple start a family together, when a different legal regime applies to cater for the financial needs of any children (albeit the regime is not as generous as that on divorce), there is no obligation for one party to support the other with maintenance payments, and there may well be no recourse to any property/a home.

The court is unable to consider the financial and housing needs of the parties and cannot take into account non-financial contributions to the relationship, such as looking after the home or caring for any children of the relationship. This can leave one partner extremely vulnerable if the relationship subsequently breaks down. As there is no obligation for one party to support the other financially post separation, even if one partner has given up work to care for dependent children they would not be entitled to maintenance payments for themselves. They would be entitled to child support from the other parent if the children made their main home with them.

One partner can also be placed in a precarious position if the couple have been living in rented accommodation but the tenancy is only in one partner’s name. Similarly one partner can be left vulnerable if the property the couple have been sharing is owned in the sole name of just one of them. In such circumstances they would not have an automatic right to continue living at the property if their partner asked them to leave. Although they could apply to the court for what is known as an "occupation order" in certain, limited, circumstances, litigation can be expensive and there are no guarantees that any such application would be successful.

Many cohabitees are also unaware that they are unable to claim a share of any savings or assets held in their partner’s sole name which they have acquired out of their own money. This will include any pension assets the other party may have acquired.

For many separated couples, in the absence of establishing a claim, the economically weaker party, often the woman, can face a poor financial future, possible homelessness, a lack of pension and no income.

As mentioned above, the law may be more generous in the event of the parties having children, when an alternative legal regime applies.

Law Reform for cohabiting couples?

Given the rise in the number of cohabiting families in the UK, many family law professionals, organisations and individuals have been campaigning for reform in this area. Many argue that the law does not reflect the trends in modern society and that something needs to be done to ensure that cohabiting couples are offered a greater level of legal protection.

Although law reform is demanded, and the Cohabitation Rights Bill is in the early stages of passing through Parliament, there is little legal protection available to cohabiting couples in the UK. It has been suggested that civil partnership may offer a way to bridge the gap in rights of cohabiting opposite-sex couples but this in currently not possible in the UK.

Many cohabiting couples have no desire to enter into a formal marriage, but welcome legal recognition of their relationship and are keen to secure some financial protection in the event that their relationship breaks down.

Cohabitation Agreements

Pending any further developments in this area, it is prudent for all cohabitees to consider entering into a cohabitation agreement, if they have not already done so. Such an agreement can set out the couple’s intentions with regards to not only financial arrangements whilst they continue to live together, but also the ownership of assets upon separation.

If the couple decide to purchase a property together, they should always explore the possibility of a declaration of trust defining each partner’s share in the property.

Rachel Lim and Tania Derrett-Smith are Associate Solicitors in the family law team.

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