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The Hidden Risks of Living Together: Cohabitation Law Reform

Cohabitation refers to a living arrangement where a couple who is not married live together in the same household. The term can apply to both opposite-sex and same-sex couples.

Cohabitation is becoming increasingly popular in our modern society, having increased from 20.6% in 2011 to 24.3% in 2021, with an increase across all age groups aged under 85 years.

This is likely due to society becoming more secular and with younger people becoming more critical of the patriarchal connotations that are associated with traditional marriage.

However, many aren’t aware that there are some hidden risks that come with cohabitating, which are important to be informed of to avoid legal difficulties later in life.

The Current Legal Landscape and Risks

At present, there are multiple legal differences between cohabitation and living together as a married couple, for example:

Legal status and protections – Being married involves a formal contract that is recognised in a legal setting, affording the couple various legal protections including financial protections, and those related to inheritance tax and tax benefits. Cohabitating couples do not have this formal contract and therefore may not be afforded the same legal protections, which can make dividing assets during a separation or after a death far more complex. This can also have an impact on estate planning.

Financial Implications – In general, married partners are responsible for each other’s financial responsibilities such as debts and liabilities and often have a joint bank account where the money is owned jointly as long as they remain married. On the other hand, cohabitating couples are able to choose whether they want to combine their finances or keep them separate.

Whilst this may be seen as a positive thing, it can often lead to financial disputes in the case of a separation, especially if one partner has significantly more income than the other.

Children law implications – Where an unmarried couple have a child there is often some ambiguity concerning parenting rights, and consequently, it can be challenging to arrange who a child will live with if a couple separate.

When a child is born and the parents are unmarried, the mother automatically has parental responsibility, whereas the child’s father must acquire parental responsibility via registering the child’s birth along with the mother, or using a parental responsibility agreement.

Since cohabiting couples do not have the same financial protections as married couples, ensuring that a child is properly provided for in the aftermath of a relationship break down may also be a cause of concern.

A Demand for Cohabitation Reform

There is currently a push for cohabitation reform that has been gathering momentum for many years. On 4th August 2022, the UK parliament’s Women and Equalities Committee stated in its report titled ‘The rights of cohabitating partners’ that the time had come for the law to adapt to “the social reality of modern relationship”.

With this statement came a list of recommendations for cohabitation reform, including:

  • Reform family law to help protect cohabitating families from financial hardship on separation.
  • Give effect to the Law Commission’s proposals concerning intestacy and family provision claims for cohabiting partners.
  • Publish clear guidance and frameworks for how pension schemes should treat surviving cohabitants,
  • Review the inheritance tax regime so that it is the same for cohabiting partners as it is for married couples and civil partners.
  • Conduct a public awareness campaign to clearly distinguish marriage, civil partnership and cohabitation.

To summarise, at present, there are a number of legal risks involved with cohabitating, mainly regarding legal and financial and children law protections that are afforded to married couples but not couples who are cohabitating.

Many feel that UK law regarding “common-law marriage” should be reformed to reflect current societal standards, however, in 2022 the UK government rejected this call to reform the law for cohabitating partners.

Continued and improved public awareness and advocacy efforts are important to potentially bring about change in this area of the law.

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