Impact of New Labour Government on Family Law

Most notably there may be reform on the law on cohabitation.

What is the current law on cohabitation?

Under the current law, there is very little legal protection for unmarried couples who separate after cohabiting in comparison to married couples. Instead of being able to rely on the Matrimonial Causes Act which provides clear protections, separating cohabitants can only look to the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

Separating cohabitants do not have any automatic entitlements to their ex partner’s pension or other assets, regardless of how long the relationship was or whether they had any children together. Upon separation, cohabitants can only make claims related to property, provided that they can prove that they have a beneficial interest in the property. Schedule 1 of the Children Act can provide further assistance in limited circumstances but such cases will be in the minority with most having no recourse to further financial support beyond child maintenance.

The current law on cohabitation can leave financially weaker parties vulnerable, especially in cases where mothers have given up work to look after young children. The lack of legal protection for cohabitants is liable to placing the weaker party at an economic disadvantage upon separation.

In 2022 a report published by the House of Commons Women and Equalities Committee recommended reform of cohabitation law to prevent a “growing number of cohabitants and children being left vulnerable.” This proposal was rejected by the Conservative Government.

Cohabitation – Labour’s Position

Labour has suggested that they will commit to reform the present law on cohabitation. For example, Emily Thornberry, the Shadow Attorney-General, had announced at a Labour Conference in 2023 that a Labour Government will reform the law on cohabitation. The reform would focus on rights to property and parties’ ability to claim financial support.

However Labours Manifesto did not provide detail on reform on this area, so we will have to await detail on their reform proposals.

What could reform on the law on cohabitation look like?

Scottish law affords legal protection to separating cohabiting couples. To be entitled to these legal protections, cohabitants would first have to prove that they had been living in a similar way to a married couple.

Greater legal protection to cohabitants could involve parties being able to apply for a financial reward if they have suffered ‘economic disadvantage.’ This would not give them direct access to their partners assets but gives disadvantaged partners a means of redressing any financial imbalance upon separation. This might look like an ‘opt in, opt out’ system to give couples the choice to not live like a married couple if they do not wish to.

We look forward to hearing further about proposed reform and welcome changes that will protect vulnerable parties upon separation.

In the meantime, we can recommend considering creating a cohabitation agreement with your partner if you are living together and not married. This is an agreement that can set out both parties’ intentions in regard to property, finances and children in the circumstances that you decide to separate.