Lawyers warn cohabitation reforms must not create uncertainty for unmarried couples

Proposed reforms to the law for millions of cohabiting couples must be clearly defined and focused on genuine financial need if they are to avoid creating uncertainty for unmarried couples, Irwin Mitchell has said.

The warning comes as the Government’s A Fairer End to Relationships consultation closes on Friday. The consultation is looking at wide-ranging changes to family law, including new protections for cohabitants on separation and stronger inheritance rights for unmarried partners where someone dies without a will.

The Government has described the proposals as some of the biggest reforms to family law in decades. In its foreword, it says the law has not kept pace with modern family life and notes that more than 3.5 million couples now live together without getting married or entering a civil partnership.

In its response, Irwin Mitchell said any new framework for cohabitants must be carefully targeted, easy to understand and focused on genuine relationship-generated need.

The firm said the proposed definition of cohabitants as people living together as a couple in an “enduring family relationship” could be too vague and risk creating a quasi-marital model.

It said courts should focus on objective factors, such as whether couples share a household and, where relevant, responsibility for children. It said more subjective factors, such as the stability of the relationship, the existence of a sexual relationship or public recognition of the relationship, could be difficult to evidence and may exclude genuine relationships.

Erin Sawyer, partner in the Family Law team at Irwin Mitchell, said:

 

“Cohabitation is one of the most significant parts of this consultation and the scale of the proposed reforms should not be underestimated.

 

“Millions of couples now live together without marrying, and the Government is right to look at whether the law has kept pace with modern family life. However, any new framework needs to be clear, carefully targeted and focused on genuine financial need.

 

“If the rules are too broad or too vague, there is a risk of creating uncertainty for couples and further disputes about who should fall within the scheme.

 

“The aim should be to protect people who have been left financially vulnerable because of a relationship, without creating a broad or uncertain system that treats cohabitation in the same way as marriage.”

Irwin Mitchell said any new cohabitation regime should not simply replicate the financial principles that apply on divorce. Instead, the firm said remedies should operate as a limited safety net for genuine cases of need.

The firm also said it did not support a strict two-year time limit for claims after separation, warning that this could create injustice in cases involving domestic abuse, coercive control, trauma or other barriers that delay someone from seeking legal advice.

Irwin Mitchell said a comprehensive public education campaign would also be essential if reforms are introduced, with particular emphasis on dispelling the myth of “common law marriage”.

Erin added:

 

“One of the biggest challenges remains public misunderstanding. Many people mistakenly believe they have legal rights as ‘common law spouses’, despite the fact that common law marriage does not exist in England and Wales and cohabitants do not currently have the same rights as married couples.

 

“If the law changes, people will need clear information about what this means for unmarried cohabiting couples, particularly if they will be bound to a new regime unless they opt out. Public awareness will be just as important as the legislation itself.”

The consultation closes on Friday, 14 August. management service after helping thousands of clients manage large compensation settlements.