Marriage Rights and Cohabitees – Should The Law Change?


The law surrounding cohabitees and when they split is long and complicated, with it all too often misunderstood by the public.

What happens when cohabitees don't get along?

Is Marriage Still Important?

Sir Paul Coleridge, former High Court judge and Head of the Marriage Foundation has spoken against giving cohabiting couples the same rights as married couples. He called the proposal, "a naïve, lawyer driven idea" that undermines the notion of marriage. He condemned the politicians that supported a change in the law saying they gave "the impression that marriage doesn't matter".

He claimed that the debate should be moved away from the rights of cohabiting couples and it should turn to tackling what causes family breakdowns. Sir Paul's reflection on cohabitees is in stark contrast to that of Sir James Munby, president of the Family Division, who believes that cohabiting couples should receive some kind of legal protection. Sir James called the current situation an injustice and said "reform was desperately in need".

Carol Chrisfield, solicitor in Family Law at Simpson Millar LLP believes that, "whilst marriage is important and should be supported, for those that wish to remain unmarried the law remains complex and it is not understood by people who choose this option".

There are many reasons why a couple may wish to get married, and equally there are reasons against it. Attempts have been made to make the law understandable and easy to follow for married couples, but the laws protecting cohabitees are certainly not. It remains unclear and there appears no likelihood that clarification will follow in this area of law in the near future.

Greater Clarity is Needed

The number of cohabiting couples is growing every year but cohabitee relationships typically only last a third of the average marriage. The rise in cohabiting couples has been blamed on the increased number of children in one-parent families.

The Coalition government struck out the idea of a law to protect cohabitees in the event of a split but, according to Carol, "There should be greater clarity and better education for the public" so that people are not left vulnerable on separation.

Sir Paul Coleridge, who runs the Marriage Foundation, points out that almost half of 18-34 year olds mistakenly believe that "common law" marriage comes with rights attached and that cohabiting couples with children have the same access to each other's incomes, in the event of a split, as married ones do. This is not the case.

Lawyers have been calling for a change in the law favouring cohabitees for a while but critics have said this is all just a ploy to line their pockets. This is a terrible assumption to make, especially when it is the lawyers on the ground who have to deal with the devastation when cohabitees separate every day. Being a solicitor is about giving people the advice they need, when they need it most, more than just collecting a cheque at the end of the episode.

But what can we do in the meantime if the law isn't going to change?

We could help with any concerns following a breakdown and suggest that those intending to cohabit may wish to take legal advice before they do so, so that they fully understand their rights and obligations.

This is particularly important if the parties intend to have children or to purchase a property together.

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