There is a common misconception within the realm of family law regarding cohabiting couples. Around two-thirds of cohabiting couples wrongly believe they have rights as common law husband and wife; this is the myth known as “common-law marriage”. Married couples get a lot of luxuries; being happy, sharing a home, having children and rights. Cohabitees also have the luxuries of being happy, sharing a home, having children and yet somehow have limited rights upon breakdown. In a perfect world, this would be remedied but unfortunately, at present, this is not the case.
Recent investigation from National Statistics in 2017 has shown that there were around 19 million families in the UK. Within this 12.9 million are either in a civil partnership or married. Although cohabiting couples are among the minority (3.3 million), it is known that the number of cohabiting couple families are growing fast. Emily Knipe, for National Statistics, found that same-sex couples were most likely to be in cohabiting couple families, and opposite-sex couples more likely to be married, which is thought to be due to the same-sex marriage being a ‘relatively new legal union status’.
Upon being married, if you require a divorce due to irretrievable breakdown, the starting point for discussing remedies is considering that an equal share should be given, and then adjusted accordingly. This will be based according to contributions in the matrimonial home both before and after the family breakdown. The point to make here is that the contributions do not have to be monetary. Many casesave shown that there is no discrimination to be made between the contributions of the money-earner and the child-carer or home-maker. Conversely, at present, the position for cohabitees is that the person with the financial interest, such as the person paying the initial purchase price for the house, gets the property and financial contributions of the other cohabitee have to then be demonstrated in order to be given such an interest in a share of the home.
This position is awkward, and does not stand well in the eyes of justice, as I will demonstrate; imagine two identical couples, together for twenty years, the mother staying at home to bring up the children (contributing to the family in a non-financial way) with the father paying for the household and the only difference between the two being that one of the couples is married, and the other is not. The first of the two couples, upon divorce, it will be assumed that they are given an equal share of the house. Whilst the latter relationship, the mother will be left with nothing, as has been demonstrated in far too many cases than we should be comfortable with. In fact, the cases where women have been given a share without a financial interest are few and far between, showing historical injustices within society as a whole. This has been remedied in some respects, such as giving women the right to vote and equal pay, yet rights regarding non-financial contributions within the family home are yet to be given any weight within the UK’s judicial system. This demonstrates the lack of understanding within the current system as contributions in all areas may not just be financial, but the courts clearly have to catch up in order to remove this outdated tradition.
This is not to say that there is no form of support for cohabiting couples upon breakdown. However, this support does not appear in the form of a right, but more so a proprietary interest.
One example can be shown through constructive trusts; where the couple has a common intention (expressed or implied) towards the home and the person claiming has relied on the intention to their detriment. In this case, financial and non-financial contributions can be made. Unfortunately, this option may be considered one of the more flexible choices (as opposed to resulting trusts), but it is still narrowly applied and hard to prove that a common intention was shown.
Of course this is not to suggest that the current law is perfect and offers protection to cohabitants, as that is far from the truth. There remains a striking disadvantage with cohabiting couples in comparison to marriage and even civil partnership couples. As mentioned above, these elements that could cause a possibility of some fairness within the breakdown between cohabiting couples, are more to the extreme and rare cases. Not only this, they are unlikely to occur without the knowledge of their rights in the first place. The only way one is to argue the elements above is if they knew what being a cohabiting couple meant. Unfortunately, this is where the issue lies. Lack of knowledge causes a large majority of couples to assume they have rights. The University of Bristol released an article about Dealing with Property Issues on Cohabitation Breakdown and found that ‘very few participants had investigated or knew anything’ about their legal positions. Considering the vast number and growth of cohabitation within the community, this issue will only grow bigger.
There are a number of stances that reformist’s take, the first being an abolitionist perspective, in considering removing the fact that marriage gives you rights. Instead, giving all cohabitees and married couples a blanket protection of rights regardless of their marriage status, would be beneficial. It means that there is less confusion between the two areas, despite the fact they are so similar. It also means they would be protected in the event of relationship breakdown. However, there is considerable debate on this stance as many decide to cohabitate for the soul purpose of not being tied to such formalities of marriage. The informed couple who is aware of the rights given upon marriage, and whom chooses not to have such rights, is inadvertently given the rights, and will have to comply with them, regardless of consent.
Another option, on the back of this is an opt-in system, whereby you can choose to gain such rights by opting in to a system that gives you the rights of marriage, without actually having to do so. This would work to an extent, but the couples whom are not aware of such a system and assume they have existing common law rights will not benefit upon relationship breakdown. As a result, an opt-out system could be more effective, whereby cohabitees are automatically given marriage rights (in terms of property), and the informed couple, who is aware of the rights and chooses not to have them, can opt out of the system in order to get into such a positon. This would be a more effective system as a couple who are aware of the rights that would be imposed (the informed couple), can choose not to have such a position, whilst the uninformed couple who assume they will accumulate the common law rights. However, there has not been much consideration given yet in terms of making progress on this particular issue that is predominantly due to the lack of progress being made by the bills put through parliament to address this.
As it stands, there is a considerable lack of knowledge surrounding cohabitation, and even less of an attempt to rectify the assumptions made. Admittedly, there is no present one size fits all solution in order to address the fundamental lack of rights awarded to cohabitees, and I am not confident it will be addressed within the immediate future, but we can always live in hope.