Introduction
The legal framework governing the rights of cohabiting couples upon relationship breakdown in England and Wales has been a subject of debate for many years. Unlike married couples or those in a civil partnership, cohabitants are not afforded specific statutory protections when their relationship ends. Instead, they must rely on complex and often uncertain principles of property law to resolve financial disputes. This essay will argue that there is a clear need for reform. While respecting the autonomy of couples who choose not to marry, the current law creates significant unfairness and fails to reflect the social reality of modern relationships, meaning legislative intervention is necessary.
The Inadequacy of the Current Law
A significant issue is the widespread and mistaken belief in "common law marriage," where many cohabitants wrongly assume they acquire rights similar to married couples after living together for a certain period (Barlow et al, 2005). In reality, no such concept exists in English law. When a cohabiting relationship breaks down, the courts have no general power to redistribute property to achieve a fair outcome as they do for divorcing couples under the Matrimonial Causes Act 1973.
Instead, a cohabitant seeking to claim a share in property legally owned by their former partner must rely on the law of trusts. The leading cases of Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53 established that the courts can infer a common intention to share the beneficial ownership of a property. However, this process is often difficult, unpredictable, and expensive. It primarily focuses on financial contributions and is less able to recognise non-financial contributions, such as caring for children or the home, which often places the financially weaker party at a significant disadvantage (Herring, 2021). The law is therefore uncertain and can lead to outcomes that appear unjust, particularly where one partner is left with nothing despite years of shared life.
The Case for Reform
The primary argument for reform is to remedy the injustice faced by vulnerable cohabitants, often women who have sacrificed careers to raise children (Women and Equalities Committee, 2022). The law as it stands fails to protect individuals who have made significant non-financial contributions to a relationship. The number of cohabiting couples has more than doubled in the last two decades, making it the fastest-growing family type in the UK. The law has not kept pace with this fundamental social change, leaving a growing number of people without legal protection.
In 2007, the Law Commission published a report recommending a new statutory scheme to provide remedies for cohabitants upon separation (Law Commission, 2007). The proposed scheme would apply to eligible couples (those with a child or who had cohabited for a minimum period) and would allow a court to make an award based on the contributions each partner made to the relationship. Importantly, the scheme would be based on an "opt-out" system, preserving the freedom of couples who wished to make their own arrangements. This proposal offers a balanced solution that provides a safety net while respecting individual autonomy.
Arguments Against Reform
Despite the clear problems, there are arguments against legislative change. The principal counterargument is that of personal choice. It is argued that couples who cohabit rather than marry have deliberately chosen to avoid the legal and financial responsibilities that come with marriage. Imposing a statutory scheme would undermine this autonomy and blur the distinction between marriage and cohabitation, potentially devaluing the institution of marriage (Douglas et al, 2004). Opponents suggest that cohabitants are free to protect their interests through cohabitation agreements or by formally recording their property rights, and the law should not intervene where they have chosen not to do so.
Conclusion
While the arguments concerning personal autonomy have some merit, they are not sufficient to justify the hardship and injustice that the current law can cause. The "common law marriage" myth is pervasive, meaning many cohabitants are not making an informed choice to forego legal protection. The law's failure to recognise non-financial contributions is particularly unfair and outdated. The Law Commission’s proposed opt-out scheme strikes a sensible balance, providing a baseline of protection for vulnerable individuals while allowing couples who genuinely wish to keep their finances separate the freedom to do so. Therefore, there is a compelling and urgent need for Parliament to reform the law to provide cohabiting couples with a fair and modern legal framework.
References
Barlow, A., Duncan, S., James, G. and Park, A. (2005) Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century. Hart Publishing.
Douglas, G., Pearce, J. and Woodward, H. (2004) A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown. The Law Society.
Herring, J. (2021) Family Law. 10th edn. Pearson.
Jones v Kernott [2011] UKSC 53.
Law Commission (2007) Cohabitation: The Financial Consequences of Relationship Breakdown. Law Com No 307.
Stack v Dowden [2007] UKHL 17.
Women and Equalities Committee (2022) <a href="https://publications.parliament.uk/pa/cm5803/cmselect/cmwomeq/92/report.html">The rights of cohabiting partners</a>. HC 92. House of Commons.
