Below Sarah French, Associate Solicitor at Moore Blatch, calls for MPs to rethink how our justice system handles cohabitation and the protection of 21st century couples.
More than 3 million couples choose to live together but not marry or enter into a civil partnership. That cohabitation is the ‘new norm’ is emphasised by the fact that our current Prime Minster, Boris Johnson, cohabits with his partner in Number 10.
Despite the large and growing number of couples choosing to cohabit, little has been done to modernise the law to reflect this change. This is a problem, not least as if a relationship breaks down the law tends to be much harsher on the financially weaker party, the consequences of which can be devastating. By choosing not to marry or enter into a civil partnership, there are few additional rights that individuals acquire by cohabiting, regardless of how long they have lived together.
A not insignificant part of this problem is that the ‘common law marriage’ myth still prevails. Indeed, ‘Common-law marriage’ has not existed since 1753. Fast forward to today and, with regard to the law, cohabiting couples are treated as two unrelated individuals. No matter how long they have lived together, little account of their relationship is taken into consideration if they separate.
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When a marriage or civil partnership breaks down, both parties have claims to a share of assets owned, and this includes the home. But this is not automatically the case for cohabiting couples if one partner is not on the title deeds. For example, this can mean that mothers, who have given up their careers to raise children, can find themselves in difficulty with few legal claims against their ex-partner. It is not uncommon for one partner to move out, leaving the remaining partner unable to pay the bills. In the worst cases, one partner can be left with nowhere to live. Of course, it’s not always straight forward; if the non-home owning partner significantly contributed financially to the running of the home, then they may be able to make a claim, though this is complex and not always an easy case to make and requires making the argument that there was ‘joint common intention’ to share in the ownership of the home. This comparative complexity combined with lack of legal protection can come as a dreadful shock, especially for couples who have been together for 10, 20 or even 30 years.
Of course, there are agreements that can be put in place, the most sensible being a co-habitation agreement which sets out how each party is protected should they separate. But with the confusion surrounding cohabitation and common-law marriage myths, it can be overwhelming for couples to make sense of what needs to be done. Many don’t realise they need protection in the first place and, even when they are advised of this, they do not wish to do so as it is perceived as unromantic.
Early indications suggest the tide is starting to turn with landmark decisions over pension rights, as well as high profile cohabiting cases gaining coverage in national press (Horn v Chipperfield and Springall v Paice). However, with cohabiting couples now firmly embedded into modern society, more needs to be done. Cohabiting couples account for 17.5% of families in the UK . On 27th November, as part of cohabitation awareness week, family lawyers across the UK called on MPs to modernise the law, calling for more legal protection for cohabitants who split up. Let’s hope they have listened and the law starts to catch up with the way many people now choose to live.
