1. Cohabitation Agreements
and the Agenda for Reform
Graeme Fraser, Partner, Hunters incorporating May, May & Merrimans, London
17th June 2016

2. The future of cohabitation
Cohabitation as a modern family trend
• Cohabitation is the fastest growing type of family in the UK
• Between 2005 and 2015 there was an increase of 29.7% of
cohabiting couple families, consisting of 3.1 million opposite sex
cohabiting couple families and 90,000 same sex couple families,
accounting for 17% of all families in the UK
(Source ONS 2015)

3. Cohabitation as a modern family trend
• Increased non marital childbearing
30% of all births to cohabiting couples
• 25% of all unmarried men and women between 15 and 59 cohabit
• Vast majority of marriages preceded by cohabitation
78% of couples live together before marriage
• Delayed entry into marriage
Age at which people marry has increased to 31 for men and 29 for women
• Although childbearing and property ownership can often come before marriage…
• Intervening life events and a fear of commitment might result in a decision not to
marry
• But majority now see little difference in commitment of married and cohabiting
couples but also a patchy understanding of the difference in legal protection when
those relationships are dissolved
(Source of statistics: ONS 2014)

4. Proportions ever married by age, England
and Wales female birth cohorts, 1940-1980

5. Characteristics of cohabiting and married
couple families

6. Characteristics of cohabiting and married
couple families: social economic resources

7. Why has cohabitation increased?
• Expansion of:
– Individualisation
– Independence
– Self-actualization
– Freedom
• Rejection of:
– Patriarchy
– Authority
– Marriage

8. Changing of attitudes
• 1960s/70 social movements and feminism
• Globalisation and new employment conditions
• Result: uncertainty in relationships and more births within
cohabitation
• Consistent pattern in UK and across Western Europe and
Russia

9. Cohabitation trends across Europe
(Source: Harmonized Histories)

10. Cohabitation trends across Europe

11. Cohabitation trends across Europe

12. The incidence of cohabitation (2010)

13. Conflicting Research
• Cohabiting relationships less stable…
• But marriage not always more advantageous for
happiness and self-esteem
• Marriage leads to better outcomes …
• But new research needed to see whether there
are differences between long term cohabiting
relationships and long term marriages

14. Agenda for change
Relationship generated disadvantage
• The division of labour between any couple normally means an unequal
distribution of work between them in terms of who earns the money or
undertakes the greater share of the family's unprofitable tasks of running
the home, or caring for the children but …
• Does not automatically result in an equality of property ownership
• Childcare and homemaking can mean less income and no appreciable
assets for performing those roles
• Those financial sacrifices can then enable the 'breadwinner' to improve
their income, and invest to accumulate capital
• The effect is aggravated the longer the relationship lasts so that the
disadvantaged party could end up without any capital assets, even after a
long period of cohabitation

15. Is the application of property law remedies
inappropriate for unmarried families?
• It should not be relevant to ownership rights how a cohabiting
couple distribute their work outside and inside the home because
they did not choose this with the question of property ownership in
mind
• Tone Sverdrup, University of Oslo :
“Attempting to find a legal intention concerning property
ownership between cohabitants during a relationship not only
searches for something hypothetical but for something that cannot
exist”

16. Burns v Burns, Court of Appeal, 1983
Lord Justice May:
"… if the woman makes no "real" or "substantial" contribution…
then she is not entitled to any share in the beneficial interest in that
home even though over a substantial number of years she may
have worked just as hard as the man"
Lord Justice Fox:
"But the unfairness of that is not a matter which the Courts can
control. It is a matter for Parliament"

17. Contrast to the Family Court’s approach to
financial remedies on divorce
White v White: 26 October 2000 House of Lords:
Lord Nicholls:
"In seeking to achieve a fair outcome, there is no place for
discrimination between husband and wife…whatever the division
of labour chosen by the husband and wife, or forced upon them by
circumstances, fairness requires that this should not prejudice or
advantage either party"

18. Attempts at reform in England and Wales
• Calls for reform in England and Wales to provide financial provision on
relationship breakdown have been rejected
• Resolution's Manifesto for Family Law called for a legal framework of
rights and responsibilities when unmarried couples who live together split
up, to provide some legal protection and secure fair outcomes at the time
of a couple's separation or on the death of one partner
• Resolution's proposals are for cohabitants meeting eligibility criteria
indicating a committed relationship to have a right to apply for certain
financial orders if they separate which are automatic unless the couple
chooses to "opt out"
• Awards would be different and limited compared with divorce and might
include payments for childcare costs to enable a primary parent to work

19. What do we want family law to achieve for
cohabitants?
• Make them marry! – Napoleonic approach?
• Protect the economically vulnerable (including children) – marriage
equivalence, compensation or needs approach?
• Promote autonomy – contractual or opt-in approach?

20. Political realities:
• Liberalism favours family law reform but court disputes are often
costly and access to justice has been undermined by reductions to
public funding
• Conservatism means that resources are likely to focus more on
supporting families rather than assisting when the relationship
breaks down

21. What can we learn from other jurisdictions?

22. Legal regulation of cohabitation

23. Cohabitation legislation in other countries
Germany
• Laissez-faire approach
• 26% are cohabiting, at similar levels to the UK
• Very few rights available to young mothers on separation and for
occupation of rental properties on death of partner
• Currently no discussion of new laws (which would require a
constitutional change)
• Basic law requires state protection of marriage

24. Cohabitation legislation in other countries
Netherlands
• 30% are cohabiting
• Registered partnerships available with same legal consequences as
marriage, except childbearing and childrearing
• Only 8% are in registered partnerships

25. Netherlands: number of marriages and
entries into registered partnerships

26. Sweden
• Fixed rules
• 55% are cohabiting
• Neutral approach to marriage and cohabitation irrespective of
whether the couple is opposite sex or same sex
• Objective is to provide minimum protection to the weaker partner
when cohabitation ends
• The net value of assets acquired for joint use during the
cohabitation are shared when the cohabitation ends, regardless of
which of the parties owns the property

27. Some conclusions
• Law would be fairer if equal weight is given to indirect contributions
such as housework and child care provision, alongside direct
financial contributions
• Encouraging marriage, and rules based on unjust enrichment do not
provide protection against the financial imbalances inherent in
many cohabitant relationships

28. Lord Marks:
"It is entirely wrong to perpetuate a system that has as its default
position the notion that the partner unwilling to marry may take
advantage of the other and, while doing so, take advantage of any
children that they have together"
A suggested starting point :
• Simple legislation providing long term cohabitants and those who
have children with equality of division of any home acquired for
joint use in a family relationship

29. Avoiding TOLATA altogether
• Can we do more to support relationships?

30. Relate’s service model

31. Cohabitation, mediation and fairness
• Encouragement of mediated settlements may mean quicker, better
value, and less stressful outcomes
• Mediation enables a couple to focus on what is important to them
and the issues they need to resolve today rather than dredging up
the past
• In mediation, so long as the couple are aware of their legal rights,
they can settle matters in the way that feels fair to them
• Mediation may lead to a more humanitarian result since it can
enable a fairer outcome that recognises the contribution both
parties have made over time
• A separation agreement or consent order can make the settlement
reached in mediation legally binding

32. What is a cohabitation agreement?
A written, signed document that normally deals with:
• Who owns what, and in what proportions
• What financial arrangements have been made while living
together
• How property, assets and income should be divided on
splitting up
Potential future events such as the needs of any future children can be
addressed
• It should be upheld if properly drawn up, with reasonable
terms, and with each party having separate, independent legal
advice on its effect

33. When should a cohabitation agreement be
made?
• It can be made at any time regardless of how long the couple have
cohabited
• They are often made at the time a couple purchase a home
together
• Specialist family law advice will make the agreement more likely to
be upheld
• The terms of a cohabitation agreement can be negotiated using the
collaborative law process or through mediation

34. Why are cohabitation agreements useful?
• The lack of any automatic family law based remedy for an
unmarried couple
• They reduce or eliminate potential disputes on separation
• The negotiation of the agreement can focus the couple on the
financial planning that will be needed during the relationship

35. What should be included in a cohabitation
agreement?
• Payment of the mortgage, and linked policies – how contributions
will be dealt with on splitting up
• Management of income through bank accounts, and how
household bills, credit cards and debts will be paid
• Provision for death in service nominations in respect of pensions
• Listing ownership of personal possessions
• Expectations and wishes about care and finances for the children

36. Flexibility
• Include reviews of the agreement if the couple have children, are
moving home, or one of them experiences a significant change in
circumstances

37. Also remember to:
• Make a Will to cover the position on death
• Always consider a written Declaration of Trust whenever a property
is being purchased

38. Thank you
Graeme Fraser, Partner, Hunters
incorporating May, May & Merrimans, London

39. Acknowledgements
• Slide 4: Ann Berrington, University of Southampton
• Slide 5: Berrington and Stone’s analysis of Understanding Society 2012/3 data
• Slide 6: Berrington and Stone’s analysis of Understanding Society 2012/3 data
• Slide 9: Brienna Perelli-Harris, University of Southampton
• Slide 10: Brienna Perelli-Harris, University of Southampton
• Slide 11: Brienna Perelli-Harris, University of Southampton
• Slide 12: Nora Sanches Gassen & Brienna Perelli-Harris ESRC Centre for Population Change
• Slide 21: Nora Sanches Gassen & Brienna Perelli-Harris ESRC Centre for Population Change
• Slide 22: B Perelli-Harris and N Sanchez Gassan
• Slide 25: B Perelli-Harris and N Sanchez Gassan
• Slide 30: Relate