Could a Labour government deliver much-needed cohabitation law reform?

Last week, Emily Thornberry MP, the shadow attorney-general, gave a speech at the Labour Party Conference. In it she said that Labour was committed to giving cohabiting couples financial rights and responsibilities on relationship breakdown as part of a “common-law marriage pledge”.

The pledge was one of three that she made addressing issues she said effected women in particular:

  • Cohabitation: Labour would bring in laws to help women in cohabiting couples when the relationship breaks down and where there is no joint property or shared parental responsibility.  This would follow the examples set by countries such as Ireland and New Zealand although she didn't give details about what these laws would actually be.
  • Sexual harassment in the workplace: Labour would ensure the same protection is given to people reporting sexual harassment in the work as those who whistle-blow.
  • Stalking: Labour would strengthen protection for women from stalkers.

Most people don’t know there is no common law marriage

Many people mistakenly believe that if a couple live together for a certain amount of years, or have children together, they become “common law husband and wife” and automatically get the same rights as divorcing couples. This is wrong. Common law marriage doesn’t exist in England and Wales and hasn’t done for centuries.

While parents do have an obligation to financially support their children, when cohabiting couples split up they don’t have the same rights as married couples and courts don’t have the same powers to reallocate assets as they can on divorce. Couples mistakenly think they are protected when they buy or own property together or that the law will provide a “fair” remedy if their relationship ends.

No matter how long a couple have been together, if they aren’t married they have no automatic legal right to share in each other’s property, pensions, other assets or to claim maintenance for themselves. Their claims are limited to those that relate strictly to property and their ability to show they have a beneficial interest in that property.

You can find out more about the property rights of cohabiting couples here.

The lack of awareness makes a bad situation worse. The Second Report of Session 2022-23 Women and Equalities Committee Report shows that cohabitation is not always an informed decision:

  • 46% of people in England and Wales believe that there are automatic rights the same as marriage or a civil partnership when cohabiting couples separate.
  • 55% of people in England and Wales believe (wrongly) that the same or similar laws dealing with finances that apply to divorcing couples also apply to cohabiting couples where children are involved

When you consider that there are about 3.6million cohabiting couples, it's a staggering number who simply do not understand how financially vulnerable they would be if their relationship broke down.   The reality is that women do tend to suffer most from the lack of legal protection, and in particular those who have had a religious-only wedding. 

Previous attempts to change things

Improving things for cohabiting couples has been a rocky road. Way back in 2007, the Law Commission published a report which recommended that there needed to be a reform of the laws dealing with the financial consequences of a cohabiting relationship coming to an end. It suggested that there should be a new scheme of “financial relief on separation”. This was to be based on the “qualifying contributions” each partner made to the relationship. These contributions could be financial or non-financial, for example, caring for children. To be eligible, cohabitating couples would  have needed to have had a child together or to have lived together for a minimum period. Couples would have been able to opt out of the scheme through a written agreement.

In March 2008, the then Labour Government announced it would be taking no action to implement the Law Commission’s recommendations until research on the cost and effectiveness of a similar scheme in Scotland could be studied.

In a separate report published in 2011, the Law Commission recommended some unmarried partners should have the right to inherit after each other’s death under the intestacy rules, without having to go to court.

Ten years later and nothing had changed.  In April 2018, the Conservative Government under Theresa May said it would consider how to proceed in relation to the proposals, “in the context of any further reforms to the family justice system”.

And just last year, the Government said existing work on the law of marriage and divorce had to conclude before it could even consider changes to the law in respect of cohabiting couples. This followed the House of Commons Women and Equalities Committee publishing its report on the rights of cohabiting partners and recommending reform to “better protect cohabiting couples and their children from financial hardship in the event of separation. 

Labour’s pledge

The proposal put forward was actually very short and didn’t contain any detail so we don’t know what a Labour government might put in place.  Some options could be:

  • Unlike England and Wales, Scottish law does give legal rights to cohabiting couples. Not all cohabitants will qualify but the starting point is that the cohabitants are a couple living together in a relationship as though they were married or in a civil partnership.  When they separate, there are a variety of claims:
    • Occupancy rights – a right to continue living in a home owned or rented by their partner
    • Financial claims – not a direct entitlement to share in their partner’s assets but the ability to apply for an award if they have experienced “economic disadvantage”
  • In Ireland, cohabiting couples have rights in relation to property, pensions, children, maintenance and inheritance provided the couple have cohabited for at least five years, or two years if they have children together.  It's called a redress scheme and the idea is that it protects a partner who is financially dependent if the relationship comes to an end through death or separation.  Any claims need to be made within two years of the relationship ending and couples can opt out by signing a cohabitation agreement (although the court has the power to set it aside if it would result in an unfair outcome). 
  • New Zealand recognises “de facto” relationships which is the name given to those who live together as a couple but who aren’t married.  Provided the de facto relationship lasts longer than three years, then the same laws about property division that apply to married couples apply to the cohabiting couple. 
  • And whilst states such as Michigan have only recently made cohabitation legal, other states such as Montana and Texas recognise common-law marriage (which is often determined on the nature of the relationship rather than the amount of years spent together) and separation has the same consequences as divorce. 

This is very much a case of watch this space! Last week’s announcement is a welcome step in the right direction but there is potentially a very long road ahead. In the meantime, if you or a family member need advice about any issue concerning cohabitation or property ownership, contact our friendly and supportive team.

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