What’s next for the reform of cohabitation law?

Many people don’t realise that cohabitation is not a recognised legal status in family law in England and Wales. This means that there are no financial claims available to cohabitees upon relationship breakdown, except for seeking provision for any children, and in some circumstances, making claims against a property. Such cases are complex, fact-specific and, sadly, often mean that one person is left in a difficult financial situation. Many people don’t know that they have no legal rights and there are a number of wider issues linked to this including domestic violence and child poverty. As the Women and Equalities Committee found in their 2022 report ‘The Rights of Cohabiting Partners’, there is also a disproportionate effect on women from ethnic minority backgrounds and in religious-only marriages.

In the two years since that report, the debate has taken a significant shift from ‘if’ reform is needed to ‘when’, ‘how’, and (perhaps most important of all), ‘what’. There are essentially two options for how the law can be changed. The first is adopting an ‘assimilation’ or ‘de facto’ model, such as those used in Australia and New Zealand, where cohabiting couples who meet qualifying criteria (primarily based on length of relationship and/or children) are given the same rights as married couples. The second is a ‘difference’ model, used in Scotland and Ireland, where a new law would be enacted to provide specific financial rights for cohabiting couples on a different basis to married couples. For either option, there is strong support in the family law world that this should be a presumptive scheme to protect the most vulnerable, rather than requiring registration for the law to apply to you.

In the midst of these debates, the General Election was called. The Labour manifesto was not as specific as family lawyers had hoped in reiterating their previous commitment to address cohabitation reform. Instead, it simply said that they would "strengthen the rights and protections available to women in co-habiting couples". Cohabitation reform also didn’t make its way into the King’s Speech, though it is no secret that the Government has a lot of competing priorities and budget constraints for the first Parliamentary session (I am writing this on the day of Rachel Reeve’s first statement to the House of Commons as Chancellor). Not least of those are other urgent measures for the justice system including legal aid and the court backlogs which plague family law along with many other areas of law.

How can we keep cohabitation law reform on the Government’s agenda?

We must continue the debate in the coming months to keep cohabitation reform on the Government’s agenda and push for change as soon as possible. Resolution has asked members to write to their MP to draw attention to the Vision for Family Justice and advocate for cohabitation reform. Additionally,  there are plans underway for further events to raise awareness.

The work that Graeme Fraser (family lawyer) and Andy Hayward (associate professor at the University of Durham) who together are spearheading the campaign for law reform in this area alongside the Resolution team and their Cohabitation Committee (of which I am proud to be a member) is gathering momentum. For everyone else, we need to keep the debate going on the options and continue to engage with experts from other jurisdictions to learn from their experience. Finally, we must continue our work with cohabiting couples to achieve the best possible outcomes under current law until the much-anticipated reforms arrive.