Many consider that a reform of cohabitation law under TOLATA is long overdue. My colleagues, Stephanie Butler and Francesca Skakel, argued exactly that in their article, ‘Birketts calls for cohabitation law reform’.
Why is this?
Cohabiting families are more likely to break down than married families: 8% of married parents separate compared to 43% of unmarried parents (the Marriage Foundation). Not only are unmarried families less likely to succeed, but they are also becoming more commonplace: the number of marriages is in decline, with cohabiting families accounting for 18% of all families last year (ONS). In 2021, there were around 3.6 million cohabiting couples compared with 1.5 million in 1996.
Yet, despite cohabiting couples representing an increasingly significant proportion of the population, their rights and legal protections do not hold a candle to those enjoyed by married couples.
Too many cohabitants wrongly believe that if they live with their partner long enough or have children together, they will acquire automatic rights akin to marriage or civil partnership (the ‘common law spouse’ myth). This can lead to devastating consequences if the relationship should fail, and the case be determined under TOLATA principles.
“[Strengthening] the rights and protections available to women in co-habiting couples” is an issue that the Labour party committed to addressing in their manifesto. It is now squarely on the agenda.
Yet, it remains unclear precisely what any such reform would look like under the new Government.
What are the options?
Sir Keir Starmer could create a de facto legal relationship status once unmarried couples have cohabited for a certain period of time, similar to the position in Australia and New Zealand.
Resolution (a national network of family practitioners committed to the constructive resolution of family disputes) suggests that, once certain eligibility criteria are met indicating a committed relationship, the court be permitted to make orders similar to those made in a divorce, albeit on a different and more limited basis.
Precisely what sort of ‘eligibility criteria’ might be adopted remains unknown. Having the right to claim against your former unmarried partner’s pension or property interests, by virtue of having lived together for a year/five years/ten years [insert timeframe here please, Keir], is likely to be controversial.
The introduction of such a law would certainly represent a noticeable shift in the current legislative landscape.
Notwithstanding the above, how effective would such a law be, anyway?
1. First, it seems likely that couples would have the option of opting out of the new framework. As such, there is likely to remain a significant portion of cohabitating couples falling outside of any new regulation. In this context, the role of Cohabitation Agreements will be of increasing importance.
A Cohabitation Agreement, amongst other things, can set out the respective financial responsibilities associated with shared living arrangements, how the property should be dealt with if the parties decide to go their separate ways, and what everyone’s share in the sale proceeds should be.
Many people are already choosing to enter into an open dialogue and document their common understanding in this way, but this is bound to become ever more commonplace.
2. Secondly, what is not being discussed by any party or body are the legal rights (or lack thereof) of other categories of cohabitants. Law reform is only presently being mooted in respect of cohabiting couples in a romantic relationship. As such:
- friends who buy property together
- siblings who inherit property together
- parents living with their adult children in a granny-annex type arrangement, will continue to find themselves on the outside of any legislative protections.
According to the latest ONS data, 339,951 multi-generational households existed in 2021. It would appear from subsequent media reports and our own experience of new enquiries that the incidence of multi-generational living is on the rise. Similarly, the number of friends clubbing together to get onto the property ladder is likely to continue to rise, as first-time buyers continue to be squeezed out of the property market by high property prices.
Where relations break down between cohabiting friends, siblings or multi-generational families, their disputes will continue to be governed by the complexities of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
As such, if these categories of people cannot agree on whether to sell their property, or what their respective equitable shares are in it, the court will ultimately need to resolve those disputes under TOLATA.
Such litigation can be lengthy, costly, and uncertain, owing to the complexities of the law in this area and the discretionary nature of the remedies available.
Our Home Ownership Disputes Team specialises in drafting Cohabitation Agreements and resolving disputes under TOLATA. To discuss your needs and receive a no-obligation quote, contact Birketts today. Having the right solicitor on your side can have a significant impact on the result of your case.
Key Contacts
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2024.