The Barbie and Ken dilemma: cohabitation rights in modern Britain

Cohabitation has long been a subject of debate both socially and within the legal profession. Whilst a cohabiting couple is the fastest growing family type in the UK, with the most recent figures from the Office for National Statistics putting the figure at 3.6 million (24.3 per cent of couples), there is little to no protection for couples should the relationship break down.

Barbie and Ken: a case study

The release of the hugely popular Barbie movie this year and a revival of Barbie and Ken’s popularity across the world, provides a surprisingly good example of a couple in a - for the time - unconventional relationship. Although cohabitation today is far more commonplace than it was in the 1960s when the characters got together, the legal position in this area remains unchanged. 

Barbie and Ken ‘met’ in 1961, but in 2004 Mattel announced that the pair had consciously uncoupled, and they spent seven years apart, before rekindling their relationship in 2011.

The pair were unmarried although they lived together in Barbie’s Dreamhouse. Barbie is the ‘breadwinner’ in the relationship. Over the course of her highly successful and varied career, she has gained a number of considerable assets, including her property (the Dreamhouse) and the classic car, the pink Corvette.

Ken, in contrast, has far fewer notable assets.

When the couple split in 2004, despite being in a long-term relationship and cohabitees, Ken had no legal entitlement to any assets. Upon the breakdown of their relationship, Barbie was the exclusive owner of all of her luxurious goods, leaving Ken, or the financially weaker partner, vulnerable. Thankfully, Barbie and Ken were reunited in 2011.

However, while this fictional story has a happy ending, the reality is that many cohabiting couples who break up remain separated, and are entirely in the dark about their rights, or lack thereof.

Myth of common law marriage

There remains a popular, but sadly false, belief in the myth of the common law husband or wife and the common law marriage.

Over half (51 per cent) of Brits - according to our survey at Stowe Family Law conducted in 2022 - believe that couples who live together, especially if it is for a ‘long time’, or have children together, are automatically afforded the same legal and financial rights as married couples.

If, over the period of the relationship, the other partner had made financial contributions towards the property, for example its purchase or mortgage payments, there may be a potential claim to a portion of the property’s value. Proceedings under the Trusts of Land and Appointment of Trustees Act (TOLATA) may mean that the ‘Ken’ of the relationship could have some entitlement.

However, in general, there is a distinct failure in the way of legal and financial protection for cohabiting couples.

In the event of a cohabitee relationship ending, or one partner being widowed, the financially weaker spouse would be unable to make any claims for spousal maintenance, or on any property.

In saying this, the law thankfully makes no distinction between married and unmarried parents in the case of children. Should a cohabiting couple have children, the law can intervene to make decisions on child arrangement orders in the event of a breakup.

Calls for change

Over the past few years, there have been calls from multiple sources to introduce legal protection for cohabiting couples. The ever-increasing popularity of cohabitation has meant the lowest marriage rates since records began in 1862.

Marriage rates for opposite-sex couples continue to fall and were particularly damaged by the Covid-19 pandemic. The most recent statistics from ONS reveal that in 2020 there were only 85,770 marriages (both opposite-sex and same-sex), compared to 219,850 in 2019.

The drive behind this change is coming from the younger generation. Being married by the age of 30 now puts people in the minority. In the 1970s, the average age of marriage, for a first-time marriage, for women was 22.8 and for men 25.1. By 2019, only one in three women had ever married by the age of 30.

By 2016, 88 per cent of couples were cohabiting before marriage. The trend has, over the past years, showed no signs of slowing.

One of the most prominent voices in the campaign for a review of the law is that of MPs making up the Women and Equalities Committee.

The Committee released a report in summer 2022 investigating the lack of protection for cohabiting couples. The government responded in June 2023, ruling out better legal protections until the reviews on divorce and wedding law have concluded.

In response, on June 14 2023, the Women and Equalities Committee highlighted the Law Commission’s paper on financial remedies in divorce was not due until September 2024, so any meaningful change for cohabiting couples would be delayed even further.

The Committee Chair, Caroline Nokes MP, questioned why reviewing divorce and wedding law should ‘prevent the government from pursuing a separate, bespoke regime for cohabitants now’ and called for an urgent reconsideration of the response.

Furthermore, Graeme Fraser from Resolution has added his voice to the many. Resolution is a community of family justice professionals who work to resolve issues within family law in a non-confrontational, constructive way.

Fraser challenged the government’s rejection of the Women and Equalities Committee’s recommended reforms.

However, there remains resistance to reform. Opposition to creating laws and protection for cohabiting couples is often based on the fear of undermining marriage, imposing rights on couples who do not want them – particularly as not getting married has been an active choice for many cohabitees – and that any scheme might be inoperable.

Nevertheless, at no point have calls for cohabitation rights asked for identical treatment for cohabiting couples as married or civilly partnered couples receive. The Women and Equalities Committee report stated that ‘The law should fully recognise the social realities of modern families and protect people regardless of whether they are married, in a civil partnership, or in long-term cohabiting relationships. However, law reform should recognise that marriage continues to hold an important social and religious status in England and Wales.’

It is important to note that this is only for England and Wales. Scotland and the Republic of Ireland have laws in place with clear parameters that act to protect cohabiting couples. This provides ample example of how cohabitation reform could work for England and Wales.

Cohabiting couples can be recognised in Scotland in certain circumstances. A court will examine the length of time the couple has been living together, the nature of their relationship and whether there have been any financial arrangements in place during the relationship.

In the Republic of Ireland, cohabiting couples have rights in relation to property, child custody, maintenance and inheritance. In order to qualify, the couple must have been living together for five years, or two if the couple has dependent children.

Cohabitation agreements

There are measures that cohabitees in England and Wales can put in place which offer a degree of security, if not legal protection.

One such way is to draw up a cohabitation agreement that can include, but is not limited to, how property, capital and assets are owned and should be divided if the relationship breaks down or one spouse passes away. It can lay out child arrangements, finances and next of kin.

Cohabitation agreements are becoming increasingly popular. They can be entered into at any time during a relationship, unlike a prenuptial agreement which must be signed before a couple gets married. The agreements can also be changed at any stage should there be a change in circumstances, for example the birth of a child.

However, these are not legally binding documents, although they may carry some weight in court if properly put together by a family lawyer. Specialist legal advice should always be sought when attempting to put together such documents. 

It may be some time before England and Wales see meaningful change for cohabiting couples, despite the ever-growing number of people choosing this family type. Whilst there is continued pressure on the government to introduce legal protections for cohabitees, resistance to reform is, unfortunately, delaying what could be a powerful process.

In the meantime, there are ways in which cohabiting couples can mitigate vulnerability in the event of relationship breakdown or the death of a partner. Cohabitation agreements are one such, but specialist legal advice should be sought in order to ensure maximum enforceability of any documentation.

 Filomena Sterkaj is a Senior Associate at Stowe Family Law.