The rights of cohabitants

Cohabitation is the fastest growing type of family in England and Wales. In 2021, there were around 3.6 million cohabiting couples in the UK, up from 1.5 million in 1996.

While married couples and civil partners in England and Wales have certain legal rights and responsibilities in the event of divorce or death, cohabitants enjoy lesser protections. Legal reality notwithstanding, many people believe in the so-called “common law marriage myth,” which is the mistaken belief that after a certain amount of time together, the law treats cohabitants as if they were married. In the event of family breakdown, cohabitants must rely on complex principles of property law and trusts. Schedule 1 of the Children Act 1989 is outdated, mainly benefits children of well-to-do parents and needs reform. On death, cohabitants do not automatically inherit from their partner.

The lack of legal protection in the event of family breakdown means that women, including ethnic minority women and those who have had purely religious marriages, may experience relationship-related disadvantages. It is time for the law to adapt to the social reality of modern relationships while recognizing the social and religious status of marriage. The government should legislate an opt-out cohabitation regime, as proposed by the Law Commission. The Department of Justice should commission a review of the recommendations to see if they need to be updated. We also support the 2011 Law Commission proposals regarding claims for abstinence and family benefits for cohabiting partners. We call on the Government to implement these proposals.

The government should also issue clear guidelines on how pension schemes should treat surviving partners when claiming a survivor’s pension. We also recommend that ministers review the inheritance tax regime so that it is the same for cohabitants as for married couples and civil partners. Finally, the Government should launch a public awareness campaign to inform the population of the legal distinctions between marriage, union and cohabitation.

The report can be read in full here.

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