The most senior family judge has called for a change in the law to create legal rights and duties for unmarried couples.

Lord Justice Wall, president of the Family Division, is the latest and most probably the most senior of a number of judges who have over several years advocated the introduction of legislation for cohabitees which, if introduced, could lead to separating couples being compelled to formally separate when their relationship breaks down.

In contrast, the Law Commission, which advises the Government on legal reform, has spent a number of years considering how best to proceed in this area, and despite having recommended a change in the law in 2007, their proposals have not progressed further.

The coalition government has made clear its support of marriage as an institution and there are fears that equalising rights for cohabiting couples may water down the appeal of marriage. However, these distinctions have become more blurred in recent years by the recognition of civil partnerships, creating legal rights for same sex couples which are not available to cohabiting couples who don't choose to marry.

Yet it is estimated that there are over two million cohabiting couples (forecast to double in the next twenty years) with equivalent numbers of children being born to cohabiting couples to married couples.

Lord Justice Wall suggested that women cohabitees were in particular disadvantaged by existing arrangements as they are unable to claim maintenance and their property rights are determined by the laws of trusts which are complex.

However, what may at first appear a beneficial proposal for cohabitees could create many problems. Many couples cohabit specifically to avoid any more formal obligations between them. At what point would a 'live-in' relationship confer legal rights, which could create a critical milestone in a relationship?

Perhaps greater consideration ought to be given by parties entering into relationships, and in particular when buying a home, to consider their respective financial positions when entering into a purchase and what they consider ought to happen should their relationship break down as documents can be drafted to the circumstances to reflect the parties' intentions.

Purchases by sole owners intending for a partner to live with them should perhaps also consider carefully whether to ask their occupier to declare what interests (if any) they hold in the property and make a formal record of the position prior to legal commitment.

Find out how we can advise on cohabitation rights.

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