Time for government to look again at cohabitation rules, says Clarke Willmott

Expert family lawyer has called on the Labour government to honour its commitment to reform protections for cohabiting couples who split up.

At last year’s Labour Party conference, the then Shadow Attorney General Emily Thornberry came out in support of cohabitation reform but despite this, it was not included in the party’s election manifesto this year.

Now with Labour in government and its party conference having taken place last month, Hannah Livesey, senior associate in the family team at Clarke Willmott, believes the issue should be looked at again, with previous attempts at reform having been delayed.

She says Labour’s failure to debate the issue at its annual gathering in Liverpool is a “real missed opportunity.”

The proportion of adults in England and Wales who are cohabiting — living together and in a relationship but not married or in a civil partnership — has more than doubled between 1996 and 2021 to 3.6 million.

It is often mistakenly believed that cohabiting couples have the same or similar rights as those who are married, with nearly half of people in England and Wales believing couples living together are in a “common law marriage”. However, they do not have the same rights to property and assets as those in a marriage or civil partnership.

Hannah Livesey says the issue was brought into the spotlight again by a recent edition of Radio 4’s “You and Yours” programme, which highlighted the issues faced by a couple tied to a joint mortgage.

“The programme did not once refer to the issue predominantly affecting cohabiting people, but that is precisely the group in society who will most severely struggle with this issue,” she says.

“The case study at play in ‘You and Yours’ centred around parties who had reached an agreement as to how they would manage the ongoing joint ownership of a property post- separation. 

“Had they been married, that agreement would have been replicated within a consent order and the parties would have had the protection of the court in an enforceable order. But for unmarried people, there is no such luck. A separation agreement is not enforceable in the same way and is an expensive exercise to embark upon.”

Hannah Livesey describes the current legislation in this area as being “convoluted” and that the government should look at passing legislation giving unmarried people the ability to file their agreement with a court.

“This goes not to the important issues surrounding the sanctity of marriage, but rather to the important issue of the significance of an enforceable agreement.

“The provision for unmarried people to have the protection of an enforceable order, with a straightforward process, will serve not only to streamline the current litigious process but will better serve the aim to reduce litigation overall. It will enable separating parties to undergo alternative dispute resolution safe in the knowledge that they will be able to rely on a binding agreement at the end of it. At the moment, their only option is full-blown court proceedings which few can afford and arguably the court even less so in respect of time.

“The laws of property, trusts, and contract were not developed with cohabitants in mind – and the topic of reform has long been discussed – yet reform was delayed in 2011, and again earlier this year.

“Labour has previously indicated a commitment to reforming the law in this area while in opposition and we had hoped they would honour this commitment by re-focusing on the rights of cohabiting couples at this week’s conference.

“Their failure to do so is a real missed opportunity and meanwhile, the need for reform continues to grow.”

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