Time to recognise that cohabitation is the new marriage?

family law

The news the other day that cohabiting couple families are the fastest growing family type should come as no surprise to anyone. Cohabitation has been steadily increasing for many years now, whilst the number of married couples has pretty well flat-lined. It is also not news that the cohabiting couple is the second largest family type – they passed lone parent families about three years ago. Still, it is clear that, for whatever reasons, more people are choosing to cohabit, even if that does not necessarily mean that fewer people are choosing to marry.

Before I proceed I should say that we probably shouldn’t get too carried away with all of this just yet. To be honest, the title to this post is a little premature. Even if the current trends continue at the present rates, it will (by my completely unreliable calculation) be another 40-odd years before there are as many cohabiting couple families as married couple families.

Nevertheless, it is clearly appropriate to consider cohabiting couple families to be an important element of our society. 3.3 million families (not to mention the children of those families) represent a very large group of people.

And shouldn’t those people be properly protected by the law if their relationships break down? Why is it that society considers that it is necessary and proper to provide financial protection for divorcing couples, but not for cohabiting couples? After all, at the end of a long relationship the only material difference between what a cohabiting couple have been through and what a married couple have been through is the signing of a piece of paper at the outset. Take, for example, a woman who gave up her career to bring up a family, all the while living in her partner’s home. Is it right that she should be left with nothing – severely disadvantaged on the job market, and without even anywhere to live?

Surely, therefore, it is now time to give basic legal rights to cohabitees when they separate.

Of course, there are many who oppose such a move, but their arguments simply don’t hold water. They say, for example, that if they wanted such protections cohabitees would have got married, and that cohabitees know what they are doing, and make the choice not to have the same protections as married couples.

But how many cohabiting couples actually give consideration to any such matters when they move in together? I’m sure some do, but surely the vast majority decide nothing more than to live under the same roof. They don’t make a conscious decision not to marry.

And many of them are cohabiting under a delusion anyway. The myth of the ‘common law marriage’ is still very much alive and well. A huge proportion of the population believe that after living together for a certain period they are recognised by the common law as being married to their partners, and they therefore have the same rights as married couples. According to Resolution, the association of family lawyers, 47 per cent of the public aged 18-34 think cohabiting couples have the same legal rights as their married counterparts. Of course they don’t, but this gives the lie to the argument that cohabiting couples choose not to have the same legal rights as married couples.

And then there is the argument that those in favour of legal rights for cohabitees are trying to make cohabitation the same as marriage. They are not. No one is arguing that cohabitees should have the same rights. They are simply arguing that they be given basic rights, so that obvious injustices, such as the woman mentioned above, are avoided. Resolution, for example, are proposing that cohabitants meeting eligibility criteria indicating a committed relationship would have a right to apply for certain financial orders if they separate. This right would be automatic unless the couple chooses to ‘opt out’. The court would be able to make the same types of orders as they do currently on divorce, but on a very different and more limited basis.

Resolution’s proposals are very similar to the recommendations made by the Law Commission back in 2007. Sadly, those recommendations were shelved by the government. Perhaps the latest figures from the Office for National Statistics indicate that it is time to re-visit them?

Photo by Dennis Skley via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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6 comments

Andrew - November 13, 2017 at 4:48pm

For the protection of children during minority, fine. Capital to be returned when minority ends.
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Otherwise, no. Just no. Let’s not pretend people have taken on commitments when they have not. What is proposed would leave many men unable to move in from a failed relationship to which they were never committed.
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By all means educate students at school that cohabitation – like unrecognised religious ceremonies – does not amount to marriage. But I wonder where Resolution (a trade association which wants to create more business) get their figures from. Could the people they ask be clients who persuade themselves that they believed what would be advantageous to them? There is no limit to the capacity of disappointed people for self-delusion!

spinner - November 13, 2017 at 6:46pm

This is forced marriage, if two people wish to make a legally enforceable commitment to each other they could get married or to a lesser degree they could become joint owners of the property in which they live.

For children this is a very poor excuse in order to try to gain some sympathy when you know that child maintenance is nothing to do with the courts already and if the child needs housing there is already the children’s act. This says a lot that you need to bring up these fake arguments that you yourself must know are fake.

All this will do is increase the numbers of people choosing as they increasingly do now to live alone and not have children as it’s just not safe to take a chance on a relationship as even if you decide it hasn’t worked out and you don’t get married you now still want to take a persons property by threat of state authorized force. Leave people alone to figure out their own relationships as adults.

Seriously - November 13, 2017 at 9:32pm

What a load of tosh . Well of course Resolution suggest that people don’t know their rights , Resolution members have a vested interest to suggest that , they would like nothing more than to have even more parents and couples at logger heads to make financial gain from their sad predicament, as they do now from married couples, their members even suggest and fill in the application forms to encourage their clients to borrow outrageously, high interest loans just at a time when they are vulnerable ,emotional and financially insecure . Oh wouldn’t that be just great for the children of the co habiting couples !
As for your example of the poor naive lady giving up her career so she stays at home for the kids bit – well I would have thought that all career women were not as stupid as you say John . They would be the type that know their rights anyway . I know plenty of women , unfortunately, who get married soley because they can obtain financial gain from a man either short or long term , they don’t marry for love , especially those that re marry time and time again, They don’t think of the kids having multiple “dads” : “ son , say hello to your new dad you don’t need or even need to see your old dad now “ . Of course some men have had to wise up from being ripped off so choose to co habit and not marry , if the same rights were extended to those co habiting mums then sadly even more children would have just a single parent , usually just the mother, well 95% are with soley the mother, because dads suddenly supposedly become a sexual pervert or child beater- why , because in married life women gain hugely financially when a marriage is over or artificially “created “
by the woman to be over, as those that keep the children become those who keep and acquire all the monetary and property wealth . Now who loses out from this stupid and irresponsible system other than the man of the marriage, well obviously the poor kids who once had 2 parents but now invariably have only the one, ie the greedy mother .
If you were to compare figures of children who were freely able to see their dad or were indeed residing with Dad from co habiting couples after a parental split, then it would be much higher than those from a marital split for the reasons I’ve explained. So let’s be sensible and not extend rights to co habiting couples otherwise there will be less of them , less parents and less kids who have even the chance of a dad in their life at all .
Ps not all mums are bad just as not all dads are good , but children have a right to see both , but as long as society gives the full time residing parent all the money , 95% are women, then there’s always going to be a financial incentive for mums to lie and to alienate children from their previously loved dad .

Philip Kedge - November 13, 2017 at 9:37pm

As long as those cohabiting can choose to opt out from any laws that is fine.

Family Law tends to treat children like adults, (much weighting on wishes and feelings in child arrangements), and treat adults like children, (unable to make their own decisions and need protecting).

D - November 14, 2017 at 9:50am

A survey said 47 per cent of the public aged 18-34 thought driving whilst using a mobile phone was safe and legal, so we propose we change the law to make it an offence to crash into someone using a mobile phone whilst driving and legalising hand held mobile phone usage whilst driving to help everyone. 😀

Andrew - November 15, 2017 at 9:21am

The proposals certainly infantilise women by assuming that they cannot see and need to be protected from the consequences of their own choices.

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