Cohabitation Q&A with Family Lawyer Francesca Skakel 

Can you start by telling us what the current law is surrounding cohabiting couples?  

This is an area that’s completely marred by its legal complexity, is out of step with public opinion and doesn’t really have a lot of clarity surrounding it. What this means, unfortunately, is that it’s a nightmare for separating couples to have to navigate.  

It’s very difficult to provide, in accordance with married couples, a very clear summary of what the law is, because for separating couples, depending on your precise situation, there’s a variety of different statutes and laws that could or can apply.  

What are the differences between a couple that’s cohabiting and a couple that are married or in a civil partnership? 

The primary difference between a married couple and a cohabitating couple is that married couples have a whole armoury of laws aimed at correcting relationship generated disadvantage and ensuring that when they come out of a relationship, their needs are met. 

For example, in 2001 we had this case, White vs. White where the aim was to correct and make very clear that there should be no distinction between the breadwinner and a homemaker for married couples. Compare that to cohabiting couples, what you have there is law that is very, very brutal, with limited protections.  

Are there any laws that do protect cohabitating couples? 

There are some areas of property law that could protect couples, so if you have purchased a property together and both names are on the title there would be some protection afforded. However, if only one person is named and the other partner subsequently moved into the property, despite any contributions to the mortgage and bills that person makes, it’s very difficult to prove that they deserve any financial reward if the couple was to split.  

The other consideration is protection for children. That area of law is limited to the child maintenance service, which is a government aided tool. And then you have Schedule One under the Children Act, which offers in very limited cases, financial protection for people with children. The awards under the Children Act are really, again, very limited compared to what you get with marriage and for the most part they are only for the duration of the child’s minority. 

What do you think the law should do to protect cohabiting couples? 

In England, we have the opportunity to start from scratch with a cohabitation law and what we’d have to do is actually define what is a cohabitating couple.  

So, we’re talking about, of course, cohabiting couples and people with young families. But we’re also talking about religious marriages, so people who haven’t had a civil marriage, couples who reunite after divorce, polyamorous relationships, asexual relations. And if we’ve got to frame a law that encompasses that wide category of people, we have to be forward looking. We’ve got laws for marriage from 1973 and for children from the 1990s so these laws are in place for a long time, and we need to be forward looking when we’re coming up with these definitions of a cohabitating couple, or just a cohabiting relationship. 

In terms of factors to define a cohabiting couple, what do you think should be considered? 

I think you’d need to look at shared finances, the length of the relationship, and whether there was a sexual relationship or not. More generally, you could look into whether there were children involved and the extent of the interconnectedness of the parties.  

I don’t think we’d want it to be an inclusive category, so you have to tick every box, but just to leave it as open as possible. Now, the question then becomes does that open the floodgates to litigation and would we have the courts flooded with people wanting to shoehorn themselves into those criteria. 

Do you think that any reform that comes in should be on the same principle as 
marriage?  

I guess the first question we need to ask as a society is should we still be protecting this category of marriage over and above cohabitation. And secondly, what is the next step.  

There’s a slight difference if we think of marriage as an opt in system, you are knowingly entering into a certain stage of your relationship where you give vows and there’s a very clear acknowledgement of this being, hopefully, for life. I think everyone recognises that as a big commitment.  

Switch to the perspective of a cohabitee, where you often find yourself in a situation where you have been living with someone for some time, but you haven’t necessarily reached that stage of “yep, this is it for life”. However, I don’t think that because of this the protection should be significantly less for cohabitating couples than if they were married. 

In terms of advising individuals that might be thinking about moving in with a partner that owns their property, what would your advice be?  

The biggest hurdle at the moment is that 46% of people in England and Wales currently believe in the myth of common law marriage, which is the misconception that the amount of time a cohabitating couple has been together may entitle them to the same protections as marriage. So, my first piece of advice would be do some research, especially if you’re moving into your partner’s property or buying together, and also if there are, or will soon be, children involved. 

What would happen if I was living in my partner’s house, and they died, but they own 
the property?  

As opposed to married couples, where the presumption is if you have no Will it all goes to the other spouse, in the case of cohabiting relations, there is no such presumption that exists. So, unless there is a specific Will in place, there will be no protection or claims available to you on death.  

What are the differences regarding tax if someone dies in a cohabitating couple? 

Again, there is no protection compared to married couples. So, just one example is with Capital Gains Tax for married couples if you’re transferring assets between spouses then there will be no tax on death and transfer between spouse’s estates is tax free. None of that exists for cohabitating couples. So, you’re suffering a lot of financial hardship by virtue of not being married.  

If someone is already in the situation where the worst has happened, do you have any advice on what they should do? 

I would seek legal advice immediately, unfortunately because the protections are non-existent in terms of property and children there isn’t much you can do, but I would always suggest getting legal advice to see if there is any movement. 

Again, it comes back to needing urgent reform. There’s a very famous case Burns vs. Burns, which was in the 80s I believe, where after 24 years of being in a relationship, not married, several children all grown up, the woman left that relationship with no home and no job and with just her washing machine, which was the only thing she purchased. We are no further on from that to this day. 

What would be your one piece of advice for cohabitating couples? 

I would strongly suggest getting some legal advice and putting a cohabitation agreement in place that outlines all of the expectations should the relationship break down. It’s as simple as having a conversation at the outset, which might not seem very romantic but will save a lot of unhappiness. The agreement can include details about property, children, other assets and even pets. Although it’s not as protected as an actual law, it can provide guidance and the expectation of what should happen if the relationship breaks down. 

Francesca recently spoke to Florence Paul all about cohabitation on our podcast, Levelling With. You can listen to the full episode here.