Why the law needs to recognise cohabitating couples

Cohabitation is the act of unmarried couples living together in a committed relationship, similar to marriage. In the UK, cohabiting couples currently lack the same legal rights and protections as their married counterparts, despite the fact that cohabitation rates have been rising over the years. This has raised concerns and led to calls to ensure legal recognition and protection for cohabiting couples.

To explain further, specialist in Family Law, Founder and Director of K J Smith Solicitors, Kerry Smith, shares her insight into the matter.

Possible benefits of cohabitation over marriage

Cohabitation has its own set of advantages that some people find preferable over traditional marriage. One of the main benefits is the flexibility it offers. Cohabiting couples have much more freedom to structure their living and financial arrangements in ways that suit their individual needs and lifestyles.

Another advantage is the sense of independence that cohabitation provides. In marriage, the two partners legally relinquish their individual identities. With cohabiting, they retain them. This can make it much easier for people to continue to pursue their own goals and interests. This in turn can help to maintain a healthy balance of independence and togetherness in the relationship.

Cohabitation can also provide a greater ability to adapt to changing circumstances. Because cohabiting couples are not legally bound to each other, they can more easily adjust their living arrangements in response to changing life circumstances, such as job changes, family responsibilities, or personal growth.

In addition, cohabitation can offer personal and emotional fulfilment without the pressures and expectations of traditional marriage. Cohabiting couples can enjoy the emotional benefits of being in a committed relationship without having to conform to societal expectations or undergo the legal and financial obligations that come with marriage.

Cohabitation among younger generations

Cohabitation has become a popular choice among younger generations. There are many reasons for this.

One is the economic circumstances that many young people currently face. This includes high levels of student debt and a challenging job market. These conditions mean that they may simply not be able to afford a wedding, at least not in the style they might like and not right now.

By contrast, they may benefit from cohabitation as it enables couples to share living expenses and financial resources. The influence of this factor may decrease as economic conditions improve. There are, however, other factors that may still cause some couples to favour cohabitation over matrimony.

Changing social attitudes are another factor driving the rise in cohabitation among younger generations. Many young people value their independence and freedom and may see marriage as an outdated and restrictive institution. Cohabitation offers individuals a way to maintain a committed relationship while retaining their autonomy.

Statistics show that cohabitation rates have been steadily rising among younger generations. According to the Office for National Statistics, cohabitation rates for those aged 16-29 increased from 14% in 1998 to 25% in 2017.

Cohabitation among older generations

The reasons why older couples are choosing cohabitation over marriage are varied. For some, it may be a way to maintain their financial independence and avoid the potential financial risks associated with marriage, particularly in cases where one partner has significant assets or debts.

For others, cohabitation may be a way to avoid complicated legal issues, such as issues related to inheritance, which can arise in the event of a marriage breakdown or the death of a partner.

There are also emotional reasons why older couples may choose cohabitation over marriage. For those who have been previously married or in long-term relationships, cohabitation may provide a way to enjoy the benefits of a committed relationship without the legal or social expectations that come with marriage.

It can also offer a way to avoid the pressures and expectations of traditional marriage, particularly for those who may have experienced a difficult divorce or the loss of a partner.

Why the law needs to recognise cohabitating couples

As the law currently stands, cohabiting couples are highly likely to find themselves without the same legal protections and rights as married couples.

For example, if a cohabiting couple separates, there may be no clear legal framework to determine the division of assets or financial responsibilities. Similarly, in the event of the death of one partner, the surviving partner may have no legal entitlement to the deceased partner's assets or property, even if they have lived together for many years.

The lack of legal recognition can also cause significant emotional and psychological distress for cohabiting couples, particularly in cases where one partner is left financially vulnerable or without adequate support after a separation or death.

This can lead to protracted and costly legal battles, as well as feelings of injustice and unfairness. This, in turn, can have a detrimental effect on any children born from the union.

How cohabiting couples can protect themselves legally

Legal change both can and does happen. Unfortunately, it tends to happen very slowly (and sometimes very painfully). Fortunately, there is still a lot that cohabiting couples can do to protect themselves (and any children) under the current legal framework. Some of these steps are best taken under legal guidance.

Have a cohabitation agreement: A cohabitation agreement is essentially a private contract between the two halves of the couple. It sets out the terms under which they will cohabit.

As cohabitation falls outside the laws relating to marriage, a cohabitation agreement can be whatever a couple wants it to be. Typically, however, it would cover finance, ownership of assets and how assets would be divided if the couple separated.

Make a will: All adults with assets should have a will. It is vital that adults with dependents make a will. This is because wills can be used to state the deceased’s intentions regarding the care of their dependent. For example, people with children can appoint guardians for those children.

Give each other powers of attorney: Cohabiting couples are not automatically considered each other’s next of kin. They can, however, appoint each other their attorney. This legally gives them the power to take decisions on each other’s behalf if either is incapacitated.

Ensure that all paperwork is kept up-to-date (e.g., pensions): Make sure that your partner is named as the/a beneficiary where appropriate. For example, they could be nominated to receive your pension and/or insurance.

Have appropriate insurance: This is important for everyone but is particularly important for cohabiting couples.