Cohabitation – Why The Law Needs Changing In Order To Protect Modern Families

While marriage is still popular, cohabitation outside marriage is indisputably on the rise. In fact, over the last twenty years, the number of people living together outside marriage has approximately doubled. The level of protection offered to unmarried couples in England and Wales in the event of a separation, however, has not. Scotland does have some recognition of unmarried partnerships, but even so it has nothing like the concept of “common law marriage” which many people believe does exist.

The rise and rise of cohabitation 

Back in 1996 there were about 1.5 million cohabiting couples in a UK population of about 58 million people. In 2017, there are about 3.3 million cohabiting couples in a UK population of about 66 million. It’s unclear what has fuelled this rise. Certainly living together no longer carries the social stigma it once did, but just because you can do something doesn’t mean you necessarily want to. Perhaps the (potential) expense of weddings or the prospect of having to go through a divorce is making people wait longer and think harder before they decide whether or not they want to “tie the knot” at all, let alone with whom. Whatever the reason, the fact remains that increasing numbers of couples are cohabiting rather than marrying or entering into civil partnerships and yet the law relating to such relationships is essentially conspicuous by its absence.

There is no such thing as “common-law marriage”

In legal terms, marriage is a contract between two parties, which creates duties and obligations between them. As part of the marriage contract, couples agree to pool their assets and hence when a marriage is ended through divorce, assets are divided between the separating halves of the couple on the basis of law and precedent. This is by no means a perfect system and in the real world, the nature of divorce may be that neither party feels completely satisfied that the deal was fair, but it does at least offer some level of protection for people in situations where there is clear financial disparity between the partners. Contrary to what about two thirds of people appear to believe (according to a recent ComRes poll), there is no such thing as common law marriage and hence there is, currently, practically no legal protection for those ending cohabiting partnerships in England and Wales and very little in Scotland.

Lack of legal protection exposes cohabiting partners to financial risk

When couples cohabit outside of marriage there is no automatic agreement to pool assets and there is no formal process to follow to disband the union. Hence, dividing assets can ultimately turn into a matter of proof of ownership plus practicalities of possession. This is probably most evident when it comes to property. If the house is in the name of one person, then there is a high degree of likelihood that, under current laws, they will keep full ownership of it, even if the other party has contributed to the mortgage. There are some circumstances in which a party could claim a “beneficial interest” in the property, but these are limited. Given the strength of the housing market and the rise in cohabitation, this in itself would seem a strong argument for the government to act on the urging of both members of the public and members of the legal profession, including Baroness Hale, the president of the UK’s supreme court and introduce much stronger legal protection for couples ending cohabiting relationships.

Author Bio Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.