What should cohabitation reform look like?

Currently, cohabiting couples do not have the same legal rights as married couples or civil partners. This can leave people financially vulnerable when a relationship ends (particularly around property, financial support, and day-to-day living arrangements).

The proportion of people who are in a cohabiting relationship but are not married or in a civil partnership has increased from 20.6% in 2011 to 24.3% in 2021, according to the 2021 census. Given the increase in cohabiting relationships in England and Wales, reforms are much needed to better reflect this change and properly support those couples, should their relationship break down.

A public consultation is expected this Spring, which is anticipated to be pivotal in shaping any reform. A likely direction is a scheme where rights arise once certain, specific criteria are met.

Looking at other jurisdictions, a “cohabitants’ Redress Scheme” currently operates in Ireland with a specific criterion set out to be legally recognised as a cohabitant: the commonly referenced thresholds are two years where the couple have children, and five years otherwise (as a route to certain rights/remedies). This allows a cohabitant to qualify for court-ordered financial redress after a breakup or death. It is hoped that England and Wales will have a similar scheme in order to properly support cohabiting couples following separation.

What should reform consider?

Any reform will need to consider the following key issues:

• How is “cohabitation” defined, and from what point does it begin (given it can take several months/years to progress to formally living together)?
• Will this will be an opt-in/out scheme and will it cover all cohabiting couples immediately or will the criteria commence after it comes into effect?

Whatever form future legislation takes, a cohabitation agreement remains one of the most effective ways to protect each party’s interests, set expectations, reduce disputes, and provide certainty (including where wider family members have contributed financially).

A cohabitation agreement can also be used to agree day-to-day arrangements such as bill-splitting and household responsibilities. It should consider the full financial picture, including property, savings, investments, and pensions (and clarity around contributions and ownership).

What should couples be doing now?

Ultimately, the consultation presents an opportunity to bring greater clarity and fairness to an area of law that has not kept pace with modern family life.

In the meantime, cohabitants should not assume that legal protection will arise automatically: taking early advice and putting a cohabitation agreement in place remains the most reliable way to manage risk and avoid uncertainty if the relationship ends.

If you have questions or concerns about your rights if cohabitating, please contact Corinne Parke, Bethan Hill-Howells, or Maisie Johnson.