Family practitioners have long awaited the recent announcement made by the Government that it has commenced a consultation period, to look at ways in which the current legislation can be changed to afford greater protection to cohabiting couples, and in particular the more vulnerable financial party upon separation.
Whilst there has been no change to the law at this time, cohabitees remain the fastest growing family group in the UK, and it is therefore inevitable that reform will happen. The consultation will end on 14 August, after which the Government will consider input from legal professionals, charities, and other interested parties before deciding whether to put forward any proposals for change to legislation.
The indication at this time is that any changes would focus on couples who have children together or that have been in a cohabiting relationship for over three years. However, we will need to wait a little longer before we have any clarity on what any proposed changes may look like.
Why is reform being considered?
The way families are formed has changed significantly over recent decades. Increasing numbers of couples are choosing to live together without marrying, whether due to the cost of a wedding, changing social attitudes towards marriage, or a desire to retain financial independence.
Despite this shift in society, the law has not kept pace.
It remains a common belief to many that should you remain in a long-term cohabiting relationship, then you are treated as a “common law wife” or “common law husband”, but this is a myth and in fact no such protection exists.
At present, there is very limited protection for cohabitants upon separation, and if one party has relied upon the other financially, they can be left in grave financial hardship at the end of a relationship. This is in contrast to married couples, where the legislation ensures that the court considers the financial needs of both parties equally.
How can this affect families?
One of the key concerns behind the consultation is the financial vulnerability that can arise when long-term cohabiting relationships break down.
For example, one partner may have reduced their working hours or given up their career altogether to care for children, allowing the other to focus on developing their career or building wealth. Despite those contributions to family life, the financially weaker party may have very limited claims against assets held solely in the other person’s name.
Similarly, a person may have lived in a family home for many years, contributed towards household expenses and helped raise children, yet still have little or no legal entitlement to the property if they are not a legal owner.
These situations can be particularly difficult where children are involved. Although there are existing legal routes that can help with financial provision for children in certain circumstances, there is currently no equivalent system to that available on divorce which allows the court to address wider financial inequality between former cohabiting partners.
What could change?
Whilst the consultation is still in its early stages, there has been discussion around introducing greater financial protection for certain categories of cohabiting couples.
Potential reforms could include financial claims for long-term cohabitants, protections for economically vulnerable partners, or specific provisions where one party has suffered financial disadvantage through caring responsibilities for children.
The Government will need to balance the interests of those seeking greater protection against concerns raised by individuals who deliberately choose not to marry and wish to maintain clear separation of their finances and assets.
At this stage, no decisions have been made and there is no certainty regarding whether reforms will be introduced or what form they may ultimately take.
What should cohabiting couples do now?
Although the consultation is an important step, it is important to remember that the law has not yet changed.
For cohabiting couples, now may be a good opportunity to review their current arrangements and ensure they understand their legal position. This may include considering how property is owned, whether there are appropriate arrangements in place to reflect each party’s intentions, and whether a cohabitation agreement would be beneficial.
Those considering marriage may also wish to explore whether a pre-nuptial agreement is appropriate to protect assets brought into the relationship.
Looking ahead
The Government’s announcement has understandably created both optimism and concern. Some will welcome the prospect of greater protection for vulnerable partners and children, whilst others may be concerned about the impact any reforms could have on their personal wealth and property.
For now, the consultation marks the beginning of what is likely to be a significant discussion about whether the law should better reflect the reality of modern family life.
Should you require advice about protecting your assets in a cohabiting relationship, entering into a cohabitation agreement, or contemplating marriage, our experienced family law team would be happy to assist.
Call us on 0113 322 9222 or email enquiries@consilialegal.co.uk for a free 15 minute chat.