Despite various public information efforts over the years, many people still believe that when a couple lives together as a family but does not marry – perhaps they also have children together, buy a house or rent a property – that they somehow enter a “common law marriage”.

It feels intuitive that such a couple would then enjoy similar rights to married couples, with their contributions to the family being acknowledged and fair financial support being made available if the relationship breaks down or if one person dies.

But English statute provides for nothing of the sort. As the family justice community has long lamented, existing financial remedies apply only to those who are married or in a civil partnership – leaving the roughly 3.6 million cohabiting couples and their families in Britain today without adequate legal protection.

Our love lives have been rapidly changing, but our laws have fallen out of step. Fewer people are in marriages or civil partnerships than ever before: about 49.4% of over 16s in 2022, down from 51.2% in 2012 (according to the most recent ONS figures).

Many couples are also choosing to marry later in life and living together for longer first, often accumulating assets and wealth during cohabitation, and raising children “out of wedlock”. Indeed, by 2021, more children were being born to unmarried mothers (51.3%) than those in a marriage or civil partnership.

Regardless of how long a couple has cohabited for, the kinds of financial orders available to married couples under the Matrimonial Causes Act 1973, for example, or the Civil Partnership Act 2004 for same-sex civil partners (extended to opposite-sex civil partners in 2019) simply do not apply to them.

So if one partner in the couple has given up work to care for children or elderly relatives, or put all their savings into buying a property with the other partner based on a verbal agreement only, they may find themselves in an extremely vulnerable position if the relationship ends.

For these couples, there is no entitlement to claim spousal maintenance, nor is there an automatic claim to marital assets. Unmarried parents can use Schedule 1 of the Children Act 1989 to apply for a financial order in a child’s favour, but there is no equivalent for an adult partner.

In certain cases, you might be able to establish a claim over property using the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) or, if you were engaged within three years before the separation, section 17 of the archaic-sounding Married Women’s Property Act 1882. But such claims can be expensive to bring and tricky to win.

This is in contrast with countries like Sweden and Australia, for example, where unmarried couples can easily apply for their share of a jointly used property or for spousal support on separation, and France, where you can gain strong legal protections by signing up to a civil solidarity pact (PACS).

Family law practitioners and family justice organisations like Resolution were encouraged when former Shadow Attorney General Emily Thornberry MP stated her commitment to reform last year. However, the MP did not secure a ministerial position in the new Government and there have been no public statements since.

As we await the outcome of efforts by the Women and Equalities Committee, Resolution and the family law community to affect change, cohabiting couples should seek legal advice on what limited measures are available to protect them in the here and now. These might include:

• Clarifying your beneficial interests in a jointly owned property through a declaration of trust;
• Purchasing life insurance policies to protect one another in the event of death;
• Creating wills to ensure your property passes to your partner;
• Planning your estate to effectively navigate the differing rules for inheritance tax and pensions that apply to unmarried couples; and
• Drawing up a cohabitation agreement. ENDS

A timeline of cohabitation reform

• July 2004 – The Department for Constitutional Affairs (now part of the Ministry of Justice) launches a public information campaign, “Living Together”, to increase awareness of the legal status of cohabiting couples and give advice on how unmarried people can protect themselves in the event of relationship breakdown.
• The Civil Partnership Act 2004 comes into force to deal with the rights of same sex couples entering into civil partnerships. Parliamentarians express concern at the lack of legal provision for cohabitating couples.
• May 2006 – The Family Law (Scotland) Act 2006 comes into force and contains significant provisions for cohabiting couples.
• July 2007 – The Law Commission publishes a report, “Cohabitation: The Financial Consequences of Relationship Breakdown” proposing an opt-out cohabitation scheme for individuals who live together for a certain period or have children, or whose contributions to the cohabiting family have a long-lasting impact on their financial position.
• March 2008 – The Government delays acting on the Law Commission’s 2007 proposals in order to study the roll-out of the Family Law (Scotland) Act 2006.
• September 2011 – The Coalition Government rejects the Law Commission’s proposals on cohabitation reform and no further action is taken.
• March 2019 – The Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 gains Royal Assent, extending civil partnerships provisions to opposite sex couples in civil partnerships.
• July 2019 – The British Social Attitudes Survey 36 shows 49% of cohabiting couples believe there exists a “common law marriage”.
• August 2022 – The Women and Equalities Committee in Parliament publishes a report on cohabitation and inequality and proposes new legal protections for cohabitants. These proposals are rejected by the Government in November 2022.
• October 2023 – Shadow Attorney General Emily Thornberry MP confirms her support for cohabitation reform in a speech to Labour party conference.
• July 2024 – Despite high hopes for a new Cohabitation Bill to appear on the legislative agenda, it did not receive a mention in the King’s Speech.