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Rights for Cohabitees: Time for the law to move forward?

The concept of a ‘common law marriage’; i.e. that partners have various rights and obligations towards one another as a result of their cohabiting relationship, has long been assumed to be good law by the population at large. In fact, a recent poll by Resolution (an organization of family lawyers in England and Wales that promotes a constructive, non-confrontational approach to family law matters) revealed that two thirds of cohabiting people share the fallacious belief a ‘common law marriage’ exists.

The problem is that ‘common law marriage’ does not exist in law in England and Wales. An unmarried partner has no rights to a share of his or her partner’s assets as a result of their relationship; not even the home that the couple occupy together. There is, however, much enthusiasm by lawyers, judges and others for a change in the law in this area.

The decision of the Court of Appeal last week in a case involving an unmarried woman’s entitlement to bereavement damages has once again opened a debate about the rights of unmarried partners and may have added impetus to the drive to recognise in law, at least in part, the rights of cohabitees that so many believe already exist under the misnomer of ‘common law marriage’.

“Until John died I hadn’t realised that our relationship would be treated any differently and when I did it just struck me as hurtful and unfair that it could be considered less meaningful because of that [being unmarried]”. These are the words of NHS worker Jakki Smith, the former long-term partner of John Bulloch. When John died as a result of medical negligence Jakki was denied bereavement damages – a fixed amount currently in the amount of £12,980 paid to the spouse or civil partner of a person who dies following such negligence – on the basis she and John were not married or in a civil partnership at the time of his death.

Jakki, feeling aggrieved that her relationship of 16 years counted for nothing, took the government to court, claiming that her human rights had been breached due to the fact that she was denied bereavement damages. Initially she lost, but last week the Court of Appeal allowed her appeal. Ms Smith, in a statement following the ruling, made the point that there was “no longer a taboo around being unmarried; attitudes have changed, society has moved on and the law needs to be changed to reflect that”.

The consequences of this decision will undoubtedly range far beyond the ability of cohabitees to claim bereavement damages. If the legal status of cohabitation is further recognised in law in England and Wales then many of the supposed facets of ‘common law marriage’ may start to become reality. This is indeed timely, as more and more people now choose to cohabit as opposed to marrying - cohabiting couples are the fastest growing family type in this country. The Marriage Foundation in 2014 suggested that that nearly half of all twenty years olds will never get married. This leaves a huge number of people in such relationships with limited rights and even less understanding of where they stand.

As it currently stands in England and Wales, notwithstanding the ‘common law marriage’ myth, if a couple’s home is held in the sole name of one person, his or her cohabitee is likely to have no claim whatsoever to any share of the property - or indeed any other assets - after the relationship comes to an end, irrespective of the length or even the existence of children of the relationship. (Separately, where there are children, the parent with care of the children may be able to make a claim for child maintenance and/or a claim for housing or lump sum to meet the needs of the child but this right is the same irrespective of the length of the relationship, or indeed whether the couple were in a relationship at all.)

This leaves many extremely exposed, particularly those who have dedicated their time to bringing up children and looking after the home as opposed to furthering their careers and establishing themselves financially. By contrast, following the breakdown of a marriage the divorce courts in England and Wales will not discriminate between the roles of homemaker and breadwinner; the starting point in relation to the division of assets acquired during the relationship is that of equality.

Family lawyers in England and Wales are encountering an increase in the number of cases involving the division of property between unmarried couples. Accordingly, the recent Resolution poll revealed that 79% of the public think that there is a need for greater legal protection for unmarried couples. Experts including judges, politicians and family lawyers alike have petitioned for a change in the law, on the basis that the current law is antiquated.

The lack of awareness of the legal position of unmarried couples, and the continuance of the myth of the ‘common law marriage’ means that such couples are unlikely to take steps to protect themselves such as ensuring that the family home is placed in joint names. As the law currently stands it is quite possible for a couple to live together for decades, to have children together and for one party simply to take the decision to end the relationship leaving the other with no legal recourse to a share of assets or any financial assistance for him or herself.

While there can be little debate that the public needs to be further educated as to their rights (or lack thereof) on cohabitation, legal change may be more difficult than is readily appreciated. Many traditionalists will oppose measures they see as weakening the institution of marriage by granting rights associated with marriage to the unmarried. Formulating the rate at which those in a relationship, cohabitating or not, accrue rights will prove an extremely difficult tightrope to walk.

From a legal perspective the waters are already muddy. The recent victory of Jakki Smith has made the current situation increasingly unclear to lawyer and layman alike. Cohabiting couples are recognised in other ways, for example, by HM Revenue & Customs for the purposes of tax obligations, therefore the question must be asked as to whether it is now time to give them proper recognition – and indeed protection – upon the breakdown of their relationship?

This article first appeared in the Financial Times Adviser in January 2018.

Read more about living together agreements and how we can help.

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