There are some 3.6 million cohabiting couple families in the UK, making up one in five of all families.
And yet all of these couples have little or no legal protection if they split up. Worse still, many of them believe that they do have the same protection as married couples, due to the enduring myth of the ‘common law marriage.’
The plight of cohabitants on relationship breakdown has long been recognised. They can suffer serious financial hardship, especially if they are not the primary breadwinner in the relationship, or if they do not have a legal interest in the family home.
Accordingly, for many years now there have been calls for cohabitants to be given basic financial/property rights on relationship breakdown.
It finally seems that the long-awaited reform of the law has come a step closer.
The government has confirmed that it will launch a consultation this year ‘to build public consensus on what cohabitation reform should look like.’ It had previously been thought that cohabitation reform would have to wait until existing work on marriage and divorce law had been concluded, but now it seems that that is not the case.
The case for reform
Of course, asking what the reform should look like presupposes that the respondents to the consultation will agree that cohabitants should be given at least some legal protections on relationship breakdown. Some may first need to be persuaded of the need for reform at all.
The need for reform can be illustrated by the 1984 Court of Appeal case Burns v Burns, which was perhaps instrumental in sparking the calls for reform.
The case concerned a couple who; despite sharing the same surname (the woman had changed her surname to that of the man), had never married. The couple lived together for nineteen years and had two children together. The woman was unable to work whilst the children were young, spending her time looking after them.
The couple initially lived in rented accommodation, but after two years they decided to buy a home. A property was purchased, but in the sole name of the man. He paid the mortgage repayments. The woman did, however, pay for household bills and redecorating.
After the couple split up the woman sought to claim a share in the property. However, her claim was dismissed by the court. In his judgment Lord Justice May stated that because she had made no contribution towards the purchase or mortgage the woman was not entitled to any share in the home “even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union.”
Mrs Burns (as she was known) was therefore left with nothing.
What form the new law might take
We will obviously have to wait until the outcome of the consultation to see exactly what form any reform of the law might take, but there are some points upon which many proponents for reform agree:
1. Firstly, that cohabiting couples should not be given the same rights as married couples, or couples in a civil partnership. Those who oppose reform fear that it will devalue marriage, by giving cohabiting couples the same rights. But this is not so. No one is proposing that cohabiting couples be given the same rights, and that will certainly not be government policy.
2. Instead of any entitlement being determined by such matters as the division of the ‘marital assets’ or the needs of the parties, as in marriage breakdown, the entitlement of former cohabitants will be determined by reference to the economic advantages or disadvantages caused by the relationship.
3. The entitlement to apply for financial relief will not arise immediately the couple cohabit, as it can arise immediately a couple marry. Couples will only be eligible if certain requirements are met, for example if they have children together, or if they live together for a specified number of years.
4. Finally, most agree that cohabiting couples should be allowed to opt out of any financial relief scheme, subject to necessary protections, leaving them free to make their own financial arrangements.
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