Cohabitation

Status: This project is complete

In this project we focus on the financial hardship suffered by cohabitants or their children on the termination of their relationship by separation or death. 

We concentrated in particular on the following issues:

  • Whether cohabitants should have access to any remedies providing periodical payments, lump sums, or transfers of property from one party to the other when they separate.
    A review of the operation of existing remedies providing capital awards (such as lump sums and property transfers) for the benefit of children under the Children Act 1989.

  • Whether, where a cohabitant dies without a will (intestate), the surviving partner should have automatic rights to inherit. The law currently gives surviving spouses an automatic inheritance in such circumstances. Cohabitants can normally only benefit from the estate in such cases if the courts (under the Inheritance (Provision for Family and Dependants) Act 1975) grant them a discretionary award on the basis of their needs.

  • A review of the Inheritance (Provision for Family and Dependants) Act 1975 as it applies to cohabitants and their children.

  • Whether contracts between cohabitants, setting out how they will share their property in the event of the relationship ending, should be legally enforceable, and, if so, in what circumstances.

The project

The project looked at people who are living together as a couple, but who are not married to each other or who have not formed a civil partnership (the status available to same-sex couples who register their relationship).

In order to keep the project manageable, and to produce recommendations closely tailored to the particular needs of this category of relationship, our work focused solely on cohabitants. We did not consider:

  • Relationships between blood relatives or "caring" relationships

  • "Commercial" relationships (landlord and tenant or lodger)

We also did not consider:

  • Tax (including inheritance tax), social security or insolvency.  The Department for Constitutional Affairs has indicated that a consideration of these issues would not address the most immediate policy needs.

  • Child support. The Child Support Act applies to all non-resident parents of qualifying children, regardless of the nature of the relationship between the parents (whether spouses, civil partners, cohabitants or none of these). The child support system has recently been reviewed by the Department for Work and Pensions, and at the time of publication of our report on cohabitation is the subject of a Bill passing through Parliament.

  • Parental responsibility. This has been recently considered and legislated upon in the Adoption and Children Act 2002.

  • Next of kin rights. The Department of Health has recently amended its policy guidance to NHS staff to extend consultation with next of kin to include unmarried partners.

Our report and the Government's response

Following extensive consultation, we published our report to Parliament on 31 July 2007. The report contains final recommendations regarding the law as it affects cohabitants' property and finances when their relationships end, whether by separation or by death.

Our report is based on a consultation we held in 2006. The consultation paper set out various provisional proposals and posed a number of questions on which we sought consultees' views.

On 6 September 2011, we published the Law Commission's response to a written ministerial statement issued on behalf of Government by Parliamentary Under-Secretary of State, Ministry of Justice, Jonathan Djanogly. The statement announced the Government's intention to not take forward our recommendations for reform during the current parliamentary term.

More information

An article by Stuart Bridge, the Commissioner in charge of the project, published in the August 2006 edition of Family Law, contrasting the provisional proposals of Law Com 179 with the recent decisions of the House of Lords in Miller v Miller; McFarlane v MacFarlane. (With thanks to Family Law for permission to reproduce the article.)

Research examining outcomes for cohabiting couples under the current law, published by the Ministry of Justice.

Research (University of Cardiff and University of Bristol) examining how property issues are currently handled by lawyers following the breakdown of cohabiting relationships.

Research examining the impact of the Living Together Campaign on legally aware cohabitants, published by the Ministry of Justice.