A welcome change to weddings law – but what about cohabiting couples?

Harriet Collins, Associate in the Russell-Cooke Solicitors, family and children team.
Harriet Collins
3 min Read

Earlier this year, the Law Commission published its long-awaited report calling for changes to the law which applies to weddings, noting it was out of date with modern practice.

The current law dates as far back as the 19th century and sets out a number of specific legal and formal requirements which, if not complied with, leaves couples at risk of entering into marriages which are not legally recognised. This is often the case with religious ceremonies (for example, Islamic marriages).

The recommendations seek to provide a simple and fair system which allows couples to have more freedom to decide where and how their weddings take place. This includes allowing couples to have a wedding ceremony that reflects their values and beliefs in a wider variety of locations, which can be carried out by an independent officiant.

In stark contrast, following suggestions published by the Women and Equalities Committee in July 2022, the government has rejected calls to reform the law applying to cohabitees.

The suggestions included a public information campaign to dispel the “common law marriage” myth and an opt-out scheme to allow cohabitating couples (particularly those who have been living together for a number of years or have children together) to benefit from further rights upon separation, more akin to that of a marriage.

Instead, the government’s response (at least for the foreseeable future) leaves those who have chosen not to get married, or those who have fallen foul of the current legal requirements for weddings, in what can often be a very difficult financial position when it comes to separation.  

The legal position: cohabiting v married couples

On divorce, the English Court has a wide discretion to divide assets fairly between a married couple or a couple in a civil partnership. This can include the sale or transfer of assets, pension sharing orders, payments of lump sums or maintenance. The same does not apply to cohabiting couples who have no automatic legal rights on separation.

Instead, cohabitating couples are restricted to claims over property if they can demonstrate a beneficial interest, or financial claims specifically relating to children. This is often insufficient particularly for couples who have been cohabiting for a very long period of time.

If implemented, the Law Commission’s proposals to modernise weddings law reflects a welcome step forward for those who wish to enter into a marriage or civil partnership and therefore benefit from all the rights and obligations which come along with it.

However, for the many couples who do not want to take such a step they are stuck with very limited options when it comes to separating.

It is therefore important that cohabitees are not only aware of the limited protection they are currently afforded but also what steps they could take to agree financial arrangements between one another either at the outset or during their relationship.

This can include entering into documents such as a declaration of trust to regulate how a property is owned or a cohabitation agreement to record financial arrangements during the relationship and what would happen on separation. Further details about both documents can be found here.

Our specialist family lawyers regularly advise a broad range of clients on a range of issues, including pre and post-nuptial agreements, and the recognition of foreign and religious marriages. If you would like to find out more, please contact a member of the team.

Briefings Individuals & families family law family divorce law marriage religious marriage international families cohabiting couples civil partnership