Family Justice Reform: A Global Perspective on Cohabitation Law, Including U.S. Insights and the Role of Cohabitation Agreements in England and Wales

 

The rapidly changing nature of family structures globally, particluarly in the west, is causing a revaluation of legal frameworks to allow the politicians to catch up with the rapid pace of change.

This is particularly evident in cohabitation laws, as highlighted by Resolution’s ‘Vision for Family Justice’ in England and Wales. Cohabiting families, being the fastest-growing family type in England and Wales, are currently afforded very limited legal protections, a situation that starkly contrasts with laws in other jurisdictions, including the United States and Australia.

 

Cohabitation in England and Wales: Current Legal Stance

 

In England and Wales, cohabiting couples often face significant legal challenges. The Trust of Land and Appointment of Trustees Act 1996 (TOLATA) primarily governs property rights, often resulting in complex disputes. Cohabitation agreements provide some level of contractual protection but fall short compared to marriage or civil partnerships and legislators are being asked to update the laws to afford protections to this growing family dynamic.

 

Enhanced Focus on Cohabitation Agreements

 

Cohabitation agreements in England and Wales are contractual arrangements that define the management of financial affairs and property for cohabiting couples. Recognised under contract law, these agreements offer a form of protection, especially regarding asset division and financial responsibilities. However, they have big limitations, such as not overriding children’s statutory rights, and are subject to legal scrutiny for fairness.

 

International Perspectives: Sweden, Australia, and the United States

Sweden’s Cohabitee Act and Australia’s recognition of ‘de facto relationships’ under the Family Law Act 1975, highlight more progressive approaches. These jurisdictions offer more comprehensive legal frameworks, granting cohabiting couples rights and protections closer to those enjoyed by married couples.

In contrast, the United States presents a patchwork of cohabitation laws. For instance, California grants legal recognition to cohabiting couples as “domestic partners,” affording them rights akin to married couples. However, as of 2023, Mississippi retains laws against cohabitation. Interestingly, until 2016, Florida enforced antiquated laws against cohabitation, demonstrating the varied and evolving nature of cohabitation laws across the U.S.

 

England and Wales: On the Cusp of Change?

 

The disparity in cohabitation laws worldwide, from relying on property law to having specific cohabitation statutes, underscores the need for reform in jurisdictions like England and Wales. The Law Commission’s 2007 criticism of the English system and the more recent endorsement of an ‘opt-out scheme’ by the Women and Equalities committee signal a potential shift towards recognizing cohabiting couples’ rights, drawing inspiration from the models seen in Sweden, Australia, and some U.S. states.

 

OLS Solicitors: Navigating Cohabitation Law

 

At OLS Solicitors, our family law experts are committed to supporting cohabiting couples through these legal complexities. We offer tailored advice, considering international legal perspectives, to safeguard your rights and interests in cohabitation scenarios.