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The law needs to support cohabiting couples

  • Describe some of the challenges facing cohabiting couples and property
  • Explain what happens when one of the couple dies intestate
  • Explain the property situation of a cohabiting couple in a relationship breakdown
CPD
Approx.30min
The law needs to support cohabiting couples
(Văn Thắng/Pexels)

Cohabiting couples are the fastest growing household structure in the UK and yet they are still one of the least legally protected.  

Data published by the Office for National Statistics in November 2022 showed that in 2021 the greatest increase was for cohabiting couples, a household type that increased by 56.1 per cent across the past decade from 115,000 (0.5 per cent) in 2011 to 180,000 (0.7 per cent) in 2021. 

Over the past decade, the number of families and households in the UK has continued to rise in line with population growth; however, the way people are living is changing, with more and more people choosing to live together either before or without getting married, with one in five of us being in a cohabiting couple household structure. 

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This rise in household and familial structures is most likely due to the change in societal perceptions and the financial advantages of couples pooling resources and purchasing property together; and we are still seeing the statistics rise.

However, those who are in a cohabiting couple are treated differently if they should separate or die, in comparison with what the situation would be had they been married to each other, and it is really important to be aware of these differences.

The current legal position 

Unfortunately, despite the steady rise in cohabiting couples, the law does not currently acknowledge the rights of a cohabiting couple, and unlike in other EU countries there is no such a thing as a ‘common law marriage’ in the UK. 

This therefore leads to confusion and injustice for those who find themselves separating from their cohabiting partnerships, as there are complex rules of property and trust law that come into play when dealing with the separation of assets, which is usually the couple's home. 

For married couples who separate, seek to settle their finances and deal with the treatment of the ‘family home’, they will rely upon the specific statutory factors set out in section 25 of the Matrimonial Causes Act 1973.

While there is no standard formula for calculating appropriate financial provision on divorce, the court has a duty to consider all the circumstances of the case and then calculate and distribute the parties' available resources in order to achieve a fair outcome.

However, for unmarried couples the law is less objective and discretionary and more subjective and declaratory when dealing with the similar scenario.

For example, if a settlement cannot be reached between the cohabiting couple, either through negotiation or alternative dispute resolution, the route to any resolution will likely be an acrimonious and costly one as they have to pursue their claim through the Trusts of London and Appointment of Trustees Act 1996 (known as TOLATA).