LGBTQ+ Couples and the Future of Cohabitation Reform

Until 2014, same-sex couples in England and Wales were not allowed to marry and were only permitted to enter into a civil partnership. Since this time, marriage has gained popularity among LGBTQ+ couples, with 7501 same-sex marriages recorded in 2023 (ONS statistics), but nevertheless, it is still a popular choice among same-sex couples to live together but remain unmarried or civil partnered.

Cohabitation, i.e. living with a romantic partner without the legal status of marriage or a civil partnership, is widely misunderstood. Many people believe in the myth of ‘common law marriage’, but the reality is that regardless of how long you have lived with a partner, or if you have children together, if you are not married or civil partnered, you have limited legal rights if you separate or one person dies. This often comes as a shock to people in the event of a breakup, especially because it applies to things like property or your home. For example, if a house is owned in one person’s sole name, the other will not automatically be entitled to a share.

In response to decades of petitioning from legal professionals and members of the public, the Government is consulting on proposed changes to the rights of cohabiting couples upon separation and on the death of a partner without a Will. This includes potentially introducing financial claims assessed by reference to an individual’s ‘needs’, similar to those available to married couples on divorce. However, the premise is to introduce a narrower definition of ‘needs’ to ensure that there is still a distinction between marriage and cohabitation, while also allowing individuals to move forward with greater financial certainty.

The consultation also considers how ‘cohabitants’ should be defined, suggesting it may be those ‘living together in an enduring relationship’, assessed against relevant factors, and whether they should also satisfy qualifying criteria, such as at least three years’ continuous cohabitation and/or having a child of the family.

For LGBTQ+ couples, sharing a child can be more complicated, as it is often only one parent who is biologically related to the child. However, the Government has made it clear that a ‘child of the family’ would be sufficient. This means that even if the child isn’t biologically related to either, or even both, parents, the couple may still qualify for any new rights.

It’s important to say, however, that although the existing financial rights for cohabiting couples are limited, the welfare of any children is always the priority and the current law does offer a mechanism for separated cohabitants/parents to apply to the Court for financial relief for children, although such relief is not guaranteed and will depend on the circumstances. What reform to the existing law could mean, however, for unmarried parents, is that additional financial and legal rights may exist for the parents themselves.

Similarly, one of the key considerations of the consultation is the protection of victims who have suffered or are suffering domestic abuse. A study run by Stonewall in 2024, a UK-based LGBTQ+ charity standing for freedom and equality, revealed that 11% of LGBT people had faced domestic abuse from a partner in the year preceding the study. That figure increased to 17% of black, Asian and minority ethnic LGBT people.

As part of the Government’s wider plans to reduce violence against women and girls (VAWG), they raise questions about how the separation of cohabiting couples could be improved to support victims of abuse. It is therefore hoped that any changes to the law surrounding cohabiting couples that are introduced as a result of the consultation will help reduce the recurrence of domestic abuse and/or offer that additional financial support that critics say the existing law does not provide. However, changes made to any law that may impact domestic abuse victims need to be carefully considered to try and avoid any risk of re-traumatisation.

At this stage, potential changes to the law for cohabiting couples are purely a consultation. It could be many years before any reform takes place, and what any reform will look like is unknown. In the meantime, unmarried LGBTQ+ couples are encouraged to take steps to educate themselves on their rights and understand what options there are currently for protection by seeking legal advice or support. There are measures that can be put in place for legal protection, including but not limited to a Declaration of Trust or a cohabitation agreement, but the best thing to do is to seek advice from a family solicitor as soon as possible, and the same if you are going through or anticipate a separation.

Charlotte Kirkby is a Solicitor at Stowe Family Law