British legislation leaves cohabiting couples vulnerable after separation

The percentage of cohabiting couples who are living together unmarried or not in a civil partnership has risen from 20.6 per cent in 2011 to 24.3 per cent in 2021. Examining data from the 2021 Census, the Office of National Statistics (ONS) also revealed the increase in cohabitation across all age groups under 85 years, comparing data from 2011 and 2021.

Moreover, the ONS revealed the most notable percentage change in cohabitation amongst people was in those aged 25 to 29 years, with an increase from 56.5 per cent in 2011 to 71.6 per cent in 2021. This is also reflective of the decrease in marriage rates. In 2020, 85,770 marriages were recorded in England and Wales, a reduction of 61.0 per cent from 219,850 in 2019, which is the lowest number of marriages recorded since 1838.

According to a 2022 Government response, to the rights of cohabiting partners, the Government agreed upon the importance of people being made aware of the legal distinctions between getting married, forming a civil partnership and living together as cohabitants. And further agreed that it is concerning that a lot of people "believe there is such a thing as a 'common law marriage', which is an erroneous belief that after a certain amount of time living together, the law treats cohabitants as if they were married".

Furthermore, the Department for Education's statutory guidance on relationships education, includes the need for schools to create awareness for pupils to know "what marriage is, including its legal status". In addition, schools should also explain to students that "marriage carries legal rights and protections not available to couples who are cohabiting or who have married in an unregistered religious ceremony".

In England and Wales, cohabiting couples have no legal status and are therefore left vulnerable after separation. Cohabiting couples do not have entitlement to financial support or each other's assets should the relationship break down and neither do they have recognition under inheritance laws should one of them die. Many are unaware of this and are left unprotected.

Matthew Booth, Family Law Partner at Payne Hicks Beach, commented: "There remains at large a long-standing misapprehension that living together means you are in a common law marriage which grants cohabitees the same rights as married couples. This is a myth and the reality is that cohabiting couples can be at high risk if their relationship comes to an end."

He also said that unlike with the failure of a marriage, "the Court does not have power to redistribute capital resources or make orders for income provision." Further adding that it depends on how any property is owned between the couple which means that "the financially weaker party may be left with nothing should the relationship end, regardless of how long it may have endured".

Significantly, Booth remarked: "With no sign of Parliament legislating to give cohabiting couples similar rights to married couples, and a continuing absence of public information about this lacuna many cohabitees continue to be vulnerable."

He also offered a solution for such couples to "enter into a cohabitation agreement so that there is a formal document recording their financial arrangements both during the relationship and in the event that they separate".

Additionally, Co-op Legal Services states that "a cohabitation agreement, also known as a living together agreement or contract, can set out how you and your partner will manage your money matters." And in the event of a separation, a cohabitation agreement "can cover how you'll share the rent or mortgage and bills and how to deal with any bank accounts, property or assets". It also helps to deter disagreements and the avoidance of any costly court proceedings.

Another solution would be if the couple got married or entered a civil partnership.