At a family law conference in Greece last month, I attended a talk by European lawyers about prenuptial agreements and the protections they can offer people. I draft prenups routinely especially for international clients. One thing was obvious though, the elephant in the room, or should that be elephants, were that no-one discussed cohabitation agreements or cohabitation law for unmarried couples.
This was really surprising because the latest UK’s Office for National Statistics report (to give just the UK example) shows that marriage declined in 2022 below 50% for the first time as a proportion of all types of relationships that people to choose to live under - so cohabitation is on the up (along with civil partnerships but much less so).
But in England cohabitants have virtually no legal protection at all in case of relationship break up. Protections are limited and patchy across other European jurisdictions. For instance, our neighbours in Scotland have a legal protection framework for everyone who separates after cohabitation (albeit limited). In France there is an opt in system applying to capital assets only (the PACS), not maintenance. The opt in is usually used by the asset owner to protect assets, not to provide protection to the other party.
Here in England either people fall back on property law ownership rules (which are complex and ill-suited to the modern world) or they sign a cohabitation agreement. Very few couples indeed sign such agreements because there is no overarching legal structure on what to put in them.
Let me tackle the oft cited criticism of giving legal protection to a separating cohabiting person. It is said that this will damage the gold standard of marriage. That is provably wrong because marriage is in long term decline anyway. This is due to long term societal changes.
The job of the law is to provide basic protections to people within the lives they already choose to live. It is not there, in my view, to steer people to choose the lives certain campaigners think they should live. The opposition, who may well form the government this year are said to be supportive of law change. There is now discussion about whether there should be opt in rights, opt out rights or just a blanket law applying to everyone which you cannot opt out of.
The opt in/ opt out models will create winners and losers and make the weaker party susceptible to unfair pressure. I would favour blanket rights which give basic property rights and maintenance entitlement but on a limited term basis. Both would soften the blow of relationship breakdown for the weaker party and for any children involved. Sensible parties with lawyers advising on both sides at the outset of some relationships (particular with significant assets) may also then agree cohabitation agreements with an eye to the new legal framework.
Most family lawyers I speak to look forward to law change in this area in the near future. William Healing is a lawyer specialising in international family law, especially in cases with a Francophone or European element. He has dual nationality and is bilingual.
William can be contacted at the address william.healing@afpbloom.com or at +44 20 7409 1222