As a member of Resolution's Cohabitation Committee since its inception in 1995, I (along with many other family law practitioners over the intervening decades) have long been raising awareness of the lack of legal rights and consequential vulnerability for cohabitants on relationship breakdown, and in common with voices from the senior judiciary over the years, advocating for reform of cohabitation law in England and Wales.
This is long overdue as it is out of step with the way many in society choose to live their lives (recent census surveys indicated 7.2 million people live in unmarried cohabiting relationships and close to 50% of children are born outside wedlock).
Yet, on relationship breakdown, in stark contrast to their married counterparts, cohabiting couples have to rely on esoteric trust-based property law claims which turn on disputed evidential questions about the intentions of the couple in question, and/or needs-based financial claims for the benefit of their children. Although, when compared with many other jurisdictions, the latter may be considered generous in the minority of cases where there is sufficient wealth in a case to provide a home for the financially weaker parent whilst the children are growing up, those claims remain limited in scope and duration. There is also no automatic entitlement on death when a partner dies intestate and no inheritance tax exemption for the passing of assets which often results in the surviving cohabitant losing their long term home. Compounding the situation is the fact that, according to recent social attitude surveys, a majority of those in cohabiting relationships are oblivious to the vulnerabilities faced, wrongly believing that they have legal rights on relationship breakdown.
However, winds of change are approaching. A speech by an influential shadow government minister at the Labour party conference in November 2023 brought the issue of cohabitation reform to the fore in political discourse, and this was carried into the Labour party's manifesto for the general election in July 2024, with a commitment to 'strengthen the rights and protections of women in cohabiting relationships'. Then in February this year, a minister in the Justice department (Lord Ponsonby) revealed that the government 'plans to issue a formal consultation... later this year in order to build public consensus on what cohabitation reform should look like'.
This got me thinking about the legal approach in other jurisdictions where some of my family law partners at Withers practice and so I asked them what the position was for their cohabiting clients. This is what they said:
Nicky Rooz 'in New York, cohabitation does not automatically grant legal rights akin to those of married couples. Like in England – there is no recognition of a 'common law wife or husband'. However, other rights which arise by virtue of having a shared residence may arise. As a result, I often draft cohabitation agreements for couples so they can agree upon, know, and understand what rights and obligations they would like to have with and to each other upon cohabitating. It provides an important opportunity for couples to home in on and address some of the more delicate or difficult topics which they may not have otherwise thought about or felt able to address. Discussions about finances and money can be tricky, even when a relationship is going well. It is much better to be informed and clear about what legal rights do and don't exist, and what arrangements and agreements couples want to have with each other, including what their respective rights and obligations are. Cohabitation agreements are subject to contract law principles just like any other agreement. Without a cohabitation agreement, legal claims could include child support for any unemancipated children of the relationship (which generally speaking lasts until age 21), and potentially the right to apply for certain housing rights or health benefits (particularly if the parties register for domestic partnership even if they remain unmarried). Given the potential uncertainties that may arise, a cohabitation agreement that spells out a couple's rights and entitlements can be a valuable agreement for both partners to ensure that they both have certainty and security.'
Jocelyn Tsao, Billy Ko and Anisha Ramanathan in Hong Kong confirmed that common law marriage is also not recognized there. Billy Ko says 'Cohabiting partners can sign cohabitation agreements, but when they split, they do not have the same rights as married couples. Much like in England and Wales, if the relationship breaks down, cohabiting couples can try to bring a claim based on the operation of resulting, implied or constructive trusts, which is neither straightforward nor certain. Again, financial provision for children within and outside marriage can be claimed and, similar to the situation in England, is not restricted to child maintenance, but can extend to a lump sum (capital) payment and a transfer or settlement of property. Billy has just completed a cohabitation agreement for a client in Hong Kong, to complement a corresponding agreement prepared by Samantha Klein, (Withers family law partner in Los Angeles). And on the prospect of reform, Billy says 'the Hong Kong government recently proposed a new system to recognize same sex partnerships. This would potentially grant recognition and some limited rights for same sex cohabiting couples who have had their relationship registered outside Hong Kong'.
Family law partner Ivan Cheong said that the situation for cohabitants under common law in Singapore is not dissimilar. 'Singapore does not recognize common law marriage or grant automatic rights to cohabiting partners. Legal rights and obligations must be established through contracts and agreements. Cohabitation agreements can address issues such as property ownership and financial matters, but they are not as common as in some other jurisdictions. The law does not provide for income claims and any property dispute between partners would be dealt with in civil court under principles of property and trust law and so cohabitants can find themselves without legal protection. Parents can apply for maintenance for their children and these claims are addressed in the same way whether or not they were married (with relevant factors including income, earning capacity, and standard of living enjoyed during the relationship). I do not see any prospect of reform being on the horizon in this area of law, for various social and political reasons.'
Reform of the law for cohabitants to protect the vulnerable on relationship breakdown remains long overdue but, at least in England and Wales there are at last some optimistic signs on the horizon.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
