Published 01 March 2012 | Standard notes SN03372
Authors: Catherine Fairbairn
Topic: Cohabitation, Family law
Generally, although cohabitants do have some legal protection in several areas, they do not have as many rights and responsibilities as married couples, and there is no specific legal status for what is often referred to as a “common law marriage”. Studies have shown that many cohabiting couples are unaware of this fact. The Ministry of Justice has funded two voluntary sector partners to manage a campaign to make cohabitants more aware of their legal status and provide them with practical advice on how they can protect themselves and their families, should they wish to do so. Some cohabitants enter into a cohabitation agreement which can act as encouragement to consider what they would want to happen if the relationship ends. However, it is unclear how the courts will treat such agreements. Arguments have been advanced both for and against extending new rights to cohabitants.
Following consultation, in July 2007, the Law Commission published a report, Cohabitation: the financial consequences of relationship breakdown, which considered the financial consequences of the ending of cohabiting relationships. The Law Commission recommended the introduction of a new statutory scheme of financial relief on separation based on the contributions made to the relationship by the parties. The scheme would be available to eligible cohabiting couples. Couples who have had a child together or who have lived together for a minimum period would be eligible. Couples would be able to opt out of the scheme by a written agreement to that effect.
In March 2008, the previous Government announced that it would be taking no action to implement the Law Commission’s recommendations until research on the cost and effectiveness of a similar scheme recently implemented in Scotland could be studied. On 6 September 2011, Jonathan Djanogly, Parliamentary Under-Secretary of State for Justice, announced that, having carefully considered the Law Commission’s recommendations, together with the outcomes of research on the Family Law (Scotland) Act 2006, the Government did not intend to reform cohabitation in this Parliamentary term.
Following a separate consultation, the Law Commission has recently recommended that a qualifying cohabitant should be entitled to benefit from the estate of a deceased partner under the intestacy rules.
Unless specified otherwise, this note deals generally with the law in England and Wales.