HOUSEHOLDS, HARDSHIP AND THE PROMISE OF COHABITATION RIGHTS 

Published on 06 March, 2025 | Alison Fernandes

In recent years, certain dominant themes have been evident in households across England and Wales.

One has been the degree to which marriage might or might not be favoured by couples.

The most recent data published by the Office for National Statistics (ONS) showed that there were 246,897 marriages in 2022 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2021and2022).

Although that constituted a 12 per cent rise on the last full year not affected by any trace of lockdown restrictions associated with the Covid pandemic, it still marked a 42 per cent drop on the record high posted half a century before (426,241).

The flip side of that has been the continuing rise in popularity of cohabitation.

Yet more ONS’ material reveals that the number of people living together while unmarried in 2022 stood at 6,834,418 – up almost 73 per cent in 20 years (https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/populationestimatesbymaritalstatusandlivingarrangements/2022).

If we look a little more closely, we see that most of that increase was due to individuals who had not previously been married or in a civil partnership choosing to live together.

Among those men and women who had been divorced, the rise was only 3.64 per cent.

However, despite that shift, the most recent and significant reform of family law was the introduction of ‘no-fault’ divorce three years ago (https://www.legislation.gov.uk/ukpga/2020/11/contents).

The trend towards cohabitation has, as you might expect, not entirely gone unnoticed.

In 2005, the then government tasked the Law Commission with investigating whether cohabitees should be offered a chance to make a claim against each other for financial relief when they split up.

Two years later, the Commission reported back with a series of recommendations. Although not an attempt to match up to the framework open to spouses on divorce, it claimed that the proposals were still a “considerable improvement” on the law as it stood and would benefit cohabitees and their children (https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2015/03/lc307_Cohabitation_summary.pdf).

When ministers chose not to take up those suggestions, the Commission issued a forthright response.

Action was urgently required, it argued, to address the “hardship and injustice caused by the current law” (https://s3-eu-west-2.amazonaws.com/cloud-platform-e218f50a4812967ba1215eaecede923f/uploads/sites/30/2015/03/20110906_Statement_on_Govt_response.pdf).

Furthermore, the “prevalence of cohabitation”, the Commission warned, would see change becoming “more pressing over time”.

I wonder whether the sort of reform desired by the Law Commission might finally be at hand.

In January this year, Andy Slaughter, the Chairman of the House of Commons’ Justice Committee, asked whether and when Labour was going to follow through on its manifesto commitment to “strengthen the rights and protections available to women in co-habiting couples” (https://labour.org.uk/wp-content/uploads/2024/06/Labour-Party-manifesto-2024.pdf).

Lord Ponsonby of Shulbrede, a parliamentary under secretary at the Ministry of Justice, replied that plans for a consultation later this year on the matter were, in fact, well-advanced to “build public consensus on what cohabitation reform should look like” (https://committees.parliament.uk/publications/46636/documents/238516/default/).

It will come as considerable relief to cohabitees who need just as much clarity as their married counterparts about what happens if or when they break up.

They know that many relationships, sadly, do not last.

Although no figures are available for the number of failed cohabitations, we do know that 41 per cent of marriages have ended in divorce within 25 years of the individuals involved exchanging vows.

Unlike spouses, cohabitees with property claims find themselves being dealt with under civil law and not family law unless there are children to make a financial claim on behalf of.

In my opinion, that means claims are more uncertain and considerably more expensive, something which adds to the element of jeopardy which can follow the collapse of a relationship.

I believe that I’m not alone in hoping that any reform which might result from the promised consultation will herald a structure providing transparency similar to that governing financial remedy on divorce.

Even if a consultation takes place this year, of course, it may be some time before legislation on the issue comes into force.

Until it does, I think that we will see a continuation of the recent pattern of many more couples taking matters into their own hands by adopting cohabitation agreements.

These agreements are particularly frequent when people are gifted or loaned the money to buy property by parents who do not want any help given to children diminished in a subsequent court dispute.

Furthermore, cohabitation agreements are now often recommended by conveyancers and mortgage advisors dealing with unmarried couples, especially those where there is likely to be a big difference in respective contributions to a deposit.

They recognise and are trying to help avoid the difficulties which can – and indeed – do arise.