The Company Of Others: Marriage, Cohabitees And Consequence 

Published on 30 January, 2024 | Sam Hall

Regular readers of this ‘blog will understand the degree of insight into the nation’s private lives which being a family lawyer provides.

Even more than appreciating how things currently are, it’s possible to glean the evolving dynamics of relationships and predict the likely consequences of those patterns should they continue.

In recent days, the Office for National Statistics (ONS) has issued figures about the marital status of individuals in England and Wales and – as is often the case – they make for truly interesting reading (https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/populationestimatesbymaritalstatusandlivingarrangements/2022).

They also reinforce why family lawyers and peers of the realm have been expressing some concern.

The data is the latest in an annual series of snapshots and shows a continuing decline in the number of married couples making up the population.

However, one of the joys of the ONS information is what is revealed when we look a little closer.

It demonstrates that there was a 14 per cent drop in the number of married people aged between 25 and 44 during the course of the two decades since 2002, yet among individuals approaching or of pension age the reverse was true.

That was particularly the case for those over 65 – an age group which has seen marriage increase by more than one-third (37 per cent) over the last 20 years.

The concern to which I alluded arises when we look at those who have not or have previously tied the knot.

Whilst the number of cohabiting men and women who have either been married or in a civil partnership before has risen by four per cent since 2022, the number of cohabitees who have not previously been in a formal relationship has grown by 97 per cent during the same period – from 2.7 million to more than 5.3 million.

I should point out that there has been another notable increase (16 per cent) in the number of people who are either single and have not been in a marriage or civil partnership or are in a relationship but simply not living with their partners.

It is the cohabitation data, though, which should attract attention because of what it could lead to.

I completely understand that, whatever the nature of their relationships, no-one moves in together already thinking that they’re going to break up.

It is a fact, however, that many relationships do not last the course and the respective consequences for spouses and cohabitees are vastly different.

There is still, you see, a common misconception about the so-called ‘common law spouse’.

As a result, there are many people who believe that they are entitled to make a financial claim on the former partners when those relationships end when, in fact, they are not.

That is something which has repeatedly exercised the minds of politicians and lawyers who know that does not bode well.

The Liberal Democrat peer Lord Marks, for instance, has tried to move a bill to give separating cohabitees at least a measure of the rights to make a financial claim on each other that are enjoyed by husbands and wives (https://bills.parliament.uk/bills/2639).

Although his private member’s bill did not successfully navigate its way through parliament, the shadow attorney general, Emily Thornberry, has pledged that Labour will make such reforms if it prevails in the next General Election (https://www.dailymail.co.uk/news/article-12614243/Labour-plans-reform-habiting-law-women-rights-couples-split-Emily-Thornberry.html).

Should that not happen and couples not comprehend the enormous risks posed by entering into relationships unaware of the lack of financial protection relating to things such as – but not limited to – pensions, properties and business assets, then there could well be more individuals facing decidedly uncertain futures.