This week, Resolution published its ‘Vision for Family Justice’ which sets out what changes need to be made to improve our family justice system. This includes, amongst other very important proposed changes, clear proposals to improve the very little and limited protection cohabiting couples currently have in England and Wales. 

Cohabiting couples and families are the fastest growing type of family in England and Wales, yet they are currently afforded inadequate and very limited legal remedies in the event of a separation. Resolution, which is a community of over 6,500 family law professionals, believes that changes must be made to better reflect modern society.

It often comes as a surprise to find out that couples who have not entered into a marriage or civil partnership do not have specific rights in respect of how their assets are treated in the event of separation. What is more interesting is that other jurisdictions have adopted a very different approach.  

In this piece, our Family team take a look at how English law views cohabitation and how this compares to other jurisdictions.

What laws do cohabiting couples rely on in England and Wales?

The main piece of legislation that cohabiting couples can rely on when trying to decide who owns what is the Trust of Land and Appointment of Trustees Act 1996 (‘TOLATA’). This means that couples rely on basic trust principles about land, for instance, who legally owns the property and who might be entitled to a share of the value of that property. Establishing who has a legal interest can be an easy task, but understanding who might otherwise be entitled to a share of that property and how much of they are entitled to, can be quite complicated. 

In the event of a dispute, cohabitees can make an application for an order of sale or a declaration of the parties’ interests in the property under section 14 of TOLATA. In respect of financial provision for children, the cohabitee will need to rely on Schedule 1 of the Children Act 1989.

Cohabitees do have the option of entering into cohabitation agreements, which set out the arrangements between the couple. In the law’s eyes, these are seen as contracts and are governed by the principles of contract law. 

Case law has developed around cohabiting couples that guides lawyers and judges when considering how assets should be split in the event of relationship breakdown, reinforcing principles of land and trusts law.

What does cohabitation legislation look like in Sweden?

Cohabitation in Sweden is treated quite differently. The Cohabitee Act in Sweden is a piece of legislation that applies to two unmarried persons of the same sex or different sexes, who live permanently together and share the same household. There is no need for the relationship to be registered in any way so that the couple can be afforded legal protection. The way in which property is divided upon the breakdown of a relationship is based on how property is divided under the Swedish Marriage Code.

A point of interest is that cohabitees can agree between themselves, that the rules applied to the division of property in cohabitee relationships, do not need to apply to them. They are able to make a ‘preliminary agreement’ on how any property will be distributed when cohabitation comes to an end.

Critics of this regime might say that cohabitees are subject to the same rules as marriage. Others may say that, on the contrary, the law provides a greater degree of flexibility for those wishing to remain in relationships without being married.

How is cohabitation treated in Australia?

Cohabitation is legally known in Australia as a ‘de facto relationship’. This term applies when two people live together as a couple without being married. The couple can be of the same or opposite sex.

In Australia, there is a specific piece of legislation that governs cohabiting couples which is the Family Law Act 1975. The law sets out that a person is in a ‘de facto relationship’ with another person if they are:

• Not married to each other
• Not related by family
• Cohabit on a ‘genuine domestic basis’.

To establish whether a couple cohabits on a genuine domestic basis, the court looks at how long the couple has lived together, the nature of the relationship, the extent of financial dependence on the other party, whether there are any joint assets, and other factors. In order for a de facto relationship to be recognised by the law, it will need to be registered. Naturally, this means that, should the relationship break down, the couple will need to revoke the registration which could be an informal process, depending on the terms of the cohabitation agreement.

Cohabitation agreements exist in Australia and are legally binding as long as they comply with the requirements set out in the Family Law Act 1975. The agreement will set out how assets will be distributed in the event of a breakdown in the relationship and this is a formal, binding financial agreement. The courts in Australia are also able to make financial orders for cohabitees if certain conditions are satisfied.

Will there be cohabitation reform in England and Wales?

There is clearly quite a large disparity in how cohabitation is viewed across the globe. From relying on land law principles to law being created specifically for cohabitees, the level of protection afforded to cohabitees certainly varies from country to country.

In 2007, the Law Commission expressed that the remedies available to cohabitees in England and Wales are inadequate and can create situations of real hardship. The key proposals made by the Law Commission account for financial relief for cohabiting couples and the requirements appear to echo the Australian and Swedish models. It is clear that there should be a concept of choice in cohabitation and this is apparent in the proposal for the option to disapply the scheme, if the couple wishes to do so.

More recently, the Women and Equalities committee have published a report which also recommended an ‘opt out scheme’ for cohabitees, as put forward by the Law Commission. The report further highlights that the law should account for better protection for cohabitees and their children. The proposals have not been accepted by the government.

How we can help

Our specialist family law solicitors at Bindmans have expertise in advising cohabiting couples and are able to offer advice to those who may be considering moving in together and those who may have chosen to separate.