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Cohabitation (6.1) - Coggle Diagram
Cohabitation (6.1)
Introduction
What is cohabitation?
- Informal relationships between couples in sexual/romantic relationships who usually live together. They maybe relationships between same or mixed-sex couples
- There is no standard definition of cohabitants in England and Wales
- To decide whether a relationship is a cohabitating relationship, we must look at the functions performed by the relationship
Cohabitation: the statistics
- Marriage remain the most popular type of relationship between adults in England and Wales: 2024, 65.1 of families: 2014, 67.1 (ONS, 2025)
- But marriage rates have decreased - 2014, 51.5%; 2024, 49.5 - while rates of cohabitation have increased - 60.5% (ONS 2025)
- Cohabitation is the fastest growing family form
- The latest date from the ONS shows there were 3.5 million cohabitating couples famililies in 2025, an increase from 3.1 million in 2014
- 1.5 couples cohabit, which is predicted to rise to 1 in 4 by 2031
- Over half of birth are to parent who weren't married/CP
Cohabitation: public attitudes
- Do unmarried couples have a common law marriage? 2000-2-18, England and Wales
- 2000
- Definitely/probably do: 56%
- Definitely/probably do not: 37%
- 2006
- Definitely/probably do: 51%
- Definitely/probably do: 37%
- 2018
- Definitely/probably do not: 37%
- Definitely/probably do not: 4%
The common law marriage myth
- 'The common law marriage myth' refer to the commonly held misconception that cohabitation attracts the same legal consequences as marriage (and civil partnership) (Probert, 2008)
- The prevalence of the myth was first tested empirically in 2000, and the myth continues to be prevalent (Barlow, 2020)
Why do people cohabit?
Barlow and Smithson (2010) typology of cohabitants:
- (1) The ideologues - ideological objection ot marriage
- (2) The romantics - plan to marry eventually
- (3) The pragmatists - make decisions whether to marry based on practicalities/legal consequences
- (4) The uneven couples - where one partners wishes to marry, and the other does not
- (5) Religious-only ceremonies - couples who have had a ceremony which complies with religious formalities, not state formalities(and therefore cannot be recognised by the State) (Barlow, 2020)
- "Legal redress should be provided to those in unregistered religious marriages where the failure to comply with registration requirements is unwitting or is not truly voluntary on the part of one of the parties... the most important backstop that could be provided would be by providing some limited cohabitation rights of the type that exist in neighbouring jurisdictions" (Sandberg, 2021, 145-6)
What's cohabitation?
- Inheritance (Provision for Family and Dependants) Act 1975, S.1(1A), makes some provision for a surviving partner who can show they were "living (a) in the same household as the deceased, and (b) as if that person and the deceased were a married couple or civil partners"
- Adoption and Children Act 2002, S.144 defines 'a couple': "(a) a married couple, or (aa) 2 people whoa re civil partners of each other, or (b) 2 people (whether of different sexes or the same sex) living as partners in an enduring family relationship"
- Judges tend to develop a list of factors to determine whether a relationship fits a definition of cohabitation:
- e.g. Crake v Supplementary Benefits Commission [1982] Woolf J identified 6 signposts: sharing a home; stability, financial support; sexual relationship, children; public acknowledgement
The legal position: some examples
- Marriage/civil partnership:
- Spouse/civil partners have statutory home rights even when they have no beneficial interests in the home
- Automatic right to inherit if a spouse/civil partner dies without making will
- Claims under Inheritance (Provision for Family and Dependants) Act 1975 are not limited to maintenance
- Married fathers have automatic parental responsibility for their children
- Statutory regime allows redistribution of property between spouses at the relationship
- Can claim maintenance from a former partner for their own benefit or for the benefit of a child
- Cohabitation:
- No home rights where no beneficial interests int he home
- No automatic right to inherit if a partner dies without making a will
- Claims under Inheritance (Provision for Family and Dependants) Act 1975 are limtied to maintenance
- Unmarried fathers have automatic parental responsibility if named on the birth certificate (NB they can also gain PR in other ways)
- Have other rely on property law to make a claim for ownership (or under Schedule 1 for the benefit of a child)
- Child maintenance only
Challenges for cohabitants:
- The main issue with relying on rust law:
- It is backward looking, i,e, what was said and done in the past
- It prioritises conversations adn intentions specifically about property ownership, i.e. not broader intentions about sharing a home
- it prioritises people who make financial contributions over those whose make contributions for family life, e.g. domestic contributions
Relationship breakdowns
Relationship breakdown: a summary:
- Civil partnership and marriage:
- Statutory system regulating the financial consequences of relationship breakdown
- Court has wide discretion to determine what is a fair division of assets
- Broad range of orders possible
- Cohabitation:
- No statutory scheme
- Instead disputes in relation to the family home must be resolved using ordinary principles of property and trusts law
- Law is uncertain, and some evidence that it is costly and expensive
What's the problem?
- Focusing on form is beneficial:
- Administratively efficient way to fulfill the law's protective function
- However,
- Prioritises and validates specific formalised relationships only, leaving a significant number of people unable to benefit from the legal protections formalised relationships enjoy
Respect of individual autonomy:
- During the consultation on the introduction of civil partnerships in 2003, the then Government expressed the view that:
- "The Government recognises that some people deliberately choose not to make formal commitments to each other and/or limit their liabilities in respect of each other. An opt-in system would support individual choices, and would not impose responsibilities on those who do not want them"
-
Autonomy and choice:
- The notion of 'choice' is problematic
- People make relationship decisions,
- 'Choices are made in social relations that reflect long-standing cultural and social arrangements and dominant ideologies about gender and gender roles... When individuals act according to the scripts culturally crafted for these roles... we may say that they have chosen their own path. Choice is problematic in this regard. Ideology and beliefs limit and shape what are perceived as available and viable options for all individuals in society' (Fineman, 2004)
- "... with reference to moral and socially negotiated views about what behavior is accepted or expected as right and proper and this negotiation, and the views that result, varies in particular social contexts. Thus, people make decisions in a different and arguably more sophisticated way, giving different results to those anticipated by the purposive policy-makers using conventional economic and legal models" (Barlow & Duncan, 2000)
Functionally 'equivalent'
- There is no doubt that some cohabitating relationships share many of the characteristics of some married relationships, i.e. 'joint family venture':
- Presence of children
- Financial inter-mingling (e.g. joint bank accounts)
- Gendered patterns of labour: women assume primary care of children, shoulder domestic labour and make career sacrifices for the family
Gendered Outcomes:
- Outcomes for women and children are poorer in cohabitating relationships, when compared with married (Carlson & Van Orman, 2017)
- "The current law can produce unfair outcomes for cohabitants, in particular for the primary carer of children who may experience significant economic disadvantage following separation"
Cohabitation Agreements
Can cohabitants protect themselves?
- In theory, cohabitants can take steps to try to protect themselves
- (1) To prevent a surviving partner from having other apply to court for provision, cohabitants could make wills
- (2) Cohabitants can enter into binding cohabitation agreements - these careful drafting
- (3) Cohabitants could marry or enter a civil partnership
Cohabitation Agreements:
- Sutton v Mischon de Reya [2003] obiter:
- Cohabitation agreements can be enforced
- Are not contrary to public policy
- Cohabitation contracts can cover a broad range of matters:
- Property ownership
- Asset redistribution int he even of relationships breakdown, e.g. family support
- (Less tangible matters, .e.g fidelity clauses, would be unenforceable)
- Its helpful to include a background seciton outlining the intention of the parties & the purpose of the agreement
- Can provide clarity, certainty and protection
- Inherently a private matter, so numbers/nature of agreements are unknown, rarely come to court
- Generally, fall into 3 groups:
- Cohabitants wishing to buy their first home
- Cohabitants whoa re divorced or widowed
- Middle-aged couples who ahve been cohabiting long-term and have 'mingled assets (Khans-Gunns & Fahy, 2022)
- Jones v Kernott [2010]:
- "In the real world unmarried couples seldom enter into express agreements into what should happen to property should the relationship fail and often do not settle matters clearly when they do> Life is untidier than that. In reality human emotional relationships simply don't operate as if they were commercial contracts and it is idle to wish that they did" Jacob LJ
Cohabitation Agreements: Autonomy
- Viewed as promoting autonomy, however,
- Intimate relationships are inherently gendered, and often characterised by economic interdependence
- There can be unequal bargaining power between the parties
- Those who experience relationship-generated disadvantage are unlikely to acquire economic stability through a cohabitation agreement
Autonomy and gender:
- Treating cohabitation contracts in purely commercial terms risks exacerbating gender inequality cohabitation contracts should be viewed from a feminist perspective, i.e. taking account inequalities of gender, wealth, and specific circumstances of the individual parties which recognises, acknowledges and provides redress for imbalances of power in intimate relationships (Kingdom, 2000)
- Applying contracts to intimate relationships could be useful in ensuring that domestic contributions - mostly provided by women - are recognised and valued economically (Fineman, 2001; Keren, 2019)
Reform
- There have been calls from academics, judges and practitioners for law reform:
- Resolution, Vision for Family Justice (2023)
- Family Law Reform Now 2023
- Law Commission Report 2007
- Women and Equalities Committee REport 2022
- Several private members bills have been introduced with no success:
- Lord Lester's Cohabitation Bill 2008, or more recently, the Cohabitation Rights Bill 2017-19, Cohabitation Rights Bill 2020
- Political appetite:
- Emily Thornberry MP announced Labour's commitment to cohabitation reform at the Labour Party Conference 2023
Why do many say reform is necessary:
- Despite the arguments against law reform, may believe that there is a good reason to reform the law
- The arguments are essentially all about protection:
- Function-based reforms to recognise informal cohabiting relationships acts as a safety net to protect those couples who do not, for whatever reason, formalise their relationship
- It's about a need to address relationship generated disadvantage
Summary
- Cohabitation: no standard definition in England and Wales, but usually means relationships between couples
- The statistics and public attitudes have changed dramatically, but the law has not
- The legal position is complex - most concern about relationship breakdown
- Most agree that law reform is necessary for reasons of protection - function-based recognition acts as a safety net to protect those who for whatever reasons do not formalise
- But what should reform look like?