21 August 2022

By Farhad Islam

As many people may (or may not) know, on 6 April 2022 the Divorce, Dissolution and Separation Act 2020 came to effect, which removed the concept of fault in divorce with the aim of simplifying proceedings to help avoid unnecessary acrimony between parties, but also the children. In essence, the new divorce law allows a party to petition for divorce without the need to attribute fault or waiting for lengthy separation periods, and without the need to give any reasons, save for that the marriage has irretrievably broken-down.

The new Act has been hailed as bringing divorce law in line with the 21st century. The Act however was 50 years in the making, culminating in a number of public consultations, involvement of the Law Commission and the family group Resolution campaign since 2018 for the law to change.

According to a Resolution study in 2021, it was estimated that there were more than 2.8 million unmarried co-habiting households in the UK, representing a shift away from the traditional family and prompting the need for new legislation. This figure will have undoubtedly increased and indeed continue to do so, as many couples continue to opt against marriage.

Co-habitation is not however a new phenomenon. For many years, couples, whether or not consciously, have led a life together no different to that of a married couple- the only difference being that they have not formalised the relationship into a marriage. There is unfortunately a misguided assumption amongst unmarried co-habiting couples that they will be protected by the terms of ‘common-law marriage’. Sadly, such a law simply does not exist.

Presently, the law offers very little protection to unmarried co-habitants. Unlike married couples, unmarried co-habitants in England and Wales do not for instance have:

  • An automatic right to their partner’s property in the event of their partner’s death;
  • An automatic right to inherit their partner’s estate unless a Will is in place, even if the children have children together;
  • If the couple jointly own a property, both parties are entitled to their share. If one partner however is against selling the property, the other partner may have to get a Court Order for sale;
  • None of the tax reliefs enjoyed by married couples or civil partners, including pensions.

As with divorce law, the time has now also come for the law pertaining to unmarried co-habitants to catch up with 21st Century life. More importantly perhaps, an equivalent piece of legislation to the Matrimonial Causes Act 1973 for unmarried co-habitants, who are in a situation of relationship breakdown, is now considered a must. It seemed such a move would finally happen following the introduction of the Cohabitation Rights Bill, which had its second reading in the House of Lords on 15 March 2019. The purpose of the bill is to provide unmarried co-habitants with the protection they presently do not have and to make provision for them on the death of their partner. If passed into law, the Bill would provide:

  • protection for co-habitants who have lived together for a minimum of three years or who have a child together;
  • the right for either cohabitant to apply to a Court for a financial settlement order upon the breakdown of the relationship to redress a financial benefit or an economic disadvantage resulting from the period of co-habitation;
  • the right for co-habitants to opt-out of the financial settlement provisions, if they both agreed;
  • co-habitants with the right to succeed to their partner’s estate under the intestacy rules and the right to have an insurable interest in the life of their partner.

There has been some opposition to the Bill, with the primary concern being the diminution of marriage and civil partnerships. The other concern being the definition of what constitutes co-habitation. Although a definition has not yet been provided, the Bill does define co-habitants as persons living together as a couple, sharing a child or children living together for a period of 3 years and unmarried and not in a civil partnership.

It goes without saying that the Bill will one day be passed by Parliament, as it will ultimately be demanded by the public. Unfortunately, given that there is no timescale and a lack of certainty for when the Bill is likely come into force, unmarried co-habitants will continue to remain unprotected. Notwithstanding this, until such time, there are ways for unmarried co-habitants to protect themselves. Unmarried co-habitants can for instance enter into a cohabitation agreement and/or Deed of Trust, which sets out how capital assets e.g. the home, are to be owned and resolves any other financial issues, including the division of household expenses etc.

This is not legal advice; it is intended to provide information of general interest about current legal issues.