Weekly Family Law Update July 4, 2024

Proportion of married people falls below 50% for the first time, sparking calls for rights for cohabitants

A remarkable statistic has sparked calls for cohabitants to be given basic financial and property rights on relationship breakdown.

In January the Office for National Statistics published annual population estimates by marital status and living arrangements in England and Wales, for 2021/2.

Decline of marriage and rise of cohabitation

The estimates indicated that  whilst married or civil partnered remained the most common legal partnership status among the population aged 16 years and over in England and Wales, this proportion has decreased from 51.2% in 2012 to 49.7% in 2021 and 49.4% in 2022, the first time this has fallen below 50%.

And previously announced figures showed that the total number of cohabiting couples in the UK has increased from around 1.5 million in 1996 to around 3.6 million in 2021, an increase of 144%. Cohabiting couples are now the fastest growing family type.

All of this has led to renewed calls for reform of the law to give cohabitants basic rights on relationship breakdown.

At present cohabitants have no right to claim financial support from their partners if the relationship breaks down, in the way that a married person can make financial claims against their spouse should they divorce.

And this can lead to considerable financial hardship, with some cohabitants being left homeless, even after a long relationship.

The situation is made worse by the perpetuation of the idea of ‘common law marriage’, under which many cohabitants believe that if they live together long enough they will gain the rights of a married couple.

Unfortunately, this is no more than a myth. Unlike those who are married a cohabitant can make no claims against their partner for maintenance for themselves, a lump sum of money, a share of their partner’s property (save in limited circumstances) or a share of their partner’s pension.

Those calling for reform are not asking for cohabitants to be given the same rights as married couples. An idea of the sort of reform they are seeking can be found in a report that was prepared by the Law Commission back in 2007.

Opt-out scheme

The Law Commission recommended that a new scheme be introduced that would apply specifically to eligible cohabiting couples who separate.

The scheme would have three key features.

Firstly, the scheme would only apply to cohabitants who had had a child together, or who had lived together for a specified number of years. The Commission did not make a specific recommendation as to what the minimum duration requirement should be, but suggested that a period of between two and five years would be appropriate.

Secondly, the couple would have the option to opt out of the scheme through a written agreement. The scheme would then not apply unless enforcement of that agreement would be manifestly unfair, given the circumstances when the agreement was made or any unforeseen change of circumstance which had arisen since then.

Thirdly, in order to obtain a remedy, applicants would have to prove that they had made qualifying contributions to the parties’ relationship which had given rise to certain enduring consequences at the point of separation, making the scheme very different from that which applies between spouses on divorce. The applicant would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship, such as caring for any children and financial support for the family. The value of any award would depend on the extent of the retained benefit or continuing economic disadvantage.

Clearly, such a scheme could prevent many cohabitants from suffering hardship on relationship breakdown.

Unfortunately the Government announced in 2011 that it would not be taking forward the Commission’s recommendations for reform, and they have remained shelved ever since.