Many people believe that unmarried couples who live together (known as cohabitees) enjoy the same legal rights and protections as those that are married, but they are mistaken.
There is no such thing as a ‘common law’ marriage under English law and despite cohabitation being the fastest growing family type in England and Wales, if the relationship breaks down, cohabitees have to rely on complex property and trust law principles. Unmarried couples also have no automatic right to inherit under the rules of intestacy.
Last month, the Women’s and Equalities Committee (WEC) published a report on the rights of cohabitees. WEC made clear that the current law did not reflect the reality of the many diverse types of family structures in 21st century Britain and identified the need for urgent reform.
What were the main findings of the WEC Rights of Cohabitee’s Report?
The WEC received 380 written submissions from the general public, legal academics, legal practitioners, and campaign groups. The report’s key findings include:
A 2019 British Social Attitudes Survey showed almost half (46%) of the total England and Wales population wrongly assumed cohabitants living together form a ‘common law marriage’. This false belief leaves many cohabitees in shock when they discover how little legal protection is provided to unmarried couples who live together.
Unmarried couples have no automatic right to ownership of each other’s property if their relationship breaks down. Because they are forced to rely on property, trust, and contract law, the outcomes of court decisions are uncertain and case specific. Generous outright capital provisions that can occur in financial settlements upon divorce are not readily available to cohabiting couples. There are also very specific costs consequences in such cases.
As the general law prioritises financial contributions over domestic contributions, most witnesses called by the WEC argued that the financially weaker partner in a cohabiting relationship often ends up with nothing following a relationship breakdown.
Current law does not allow for caring and non-financial contributions to be considered by the court, prohibiting judges from crafting more effective remedies.
Although there is the option of creating a cohabitation agreement, this can be “emotionally and practically difficult”. Dr Charlotte Bendall, Lecturer in Law at Birmingham Law School, provided evidence
showing that when couples were seeking to make decisions as to finances there was “little to suggest that people are acting on the basis of a knowledge of the law, or even that they are aware of what the law is”.
Did the WEC provide any recommendations?
Suggestions for improving the law to protect unmarried couples who live together include:
The law must recognise the “social reality of modern families” and provide legal protection whether couples choose to marry, enter into a civil partnership, or live together. However, marriage should still be
recognised as holding important social and religious status in England and Wales. Therefore, the Law Commission’s 2007 proposals for an opt-out cohabitation scheme provides a sensible approach to reforming cohabitation law.
There needs to be a public information campaign aimed at educating people on the fact that ‘common law marriage’ does not exist. The public needs clarification on the legal distinctions between marriage,
civil partnership, and cohabitation, and the risks of wedding ceremonies that do not meet legal formalities.
The Law Commission’s 2011 recommendations concerning intestacy and family provision claims for cohabiting partners should be immediately implemented.
At present, financial settlement solutions such as spousal maintenance, pension sharing or off-setting, and the requirement for the court to consider all the factors under section 25 of the Matrimonial Causes Act 1974 are not available to couples that live together, unless they have specifically made provisions in a legally binding cohabitation agreement and taken independent legal advice.
High-net-worth cohabitee relationship breakdowns often result in one partner being left financially vulnerable. If you and your partner have, or are considering separating, it is vital that you obtain legal advice from a specialist and experienced family law practitioner.
As Resolution members, we remain constantly alive to changes in family law and will keep you updated as to the uptake of the WEC’s recommendations.
Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about cohabitation law, please phone +44 (0)20 3983 1818 or email email@example.com. All enquiries are treated in the strictest confidence.