There are now 3.6 million people in the UK who are cohabiting without choosing to marry or enter into a civil partnership. Inevitably some of those people will form part of the 50% of the population of England and Wales who believe that cohabiting couples are in a “common law marriage”. This is concerning where no such status exists in our legal system. This misapprehension can lead to disastrous results should a cohabiting couple separate, particularly for the financially weaker party.

Family lawyers have been calling for modernisation of the law in this area for many years and the issue has been considered by the Law Commission and the Women and Equalities Committee. As yet there has been no sign of change. 

Last year the shadow attorney-general, Emily Thornberry, pledged reform and the Labour party are currently consulting experts and researching the approach of other jurisdictions. This is a tricky issue politically as there is a real difficulty in deciding which couples would be included; whether couples should opt in, or opt out; and whether reform will further reduce the number of couples choosing to marry. For these reasons it seems very likely that any change would take some time to become law. 

It is hoped that policy and law makers will place the issue of cohabiting couples far higher up their list of priorities, reflecting the changing dynamic of families. For now cohabiting couples should carefully consider their legal and financial status. Declarations of Trust and cohabitation agreements can regulate the ownership of property and record how needs may be met on separation, but advice should be sought from a family law expert.