Last night Radio 4 broadcast a really interesting programme on the law and cohabitation. Part of the Unreliable Evidence series, hosted by Clive Anderson, this programme looked at the current state of the law on cohabitation and the proposals for change. At the time of posting, this can be heard again here.
The programme description states that “There are over four million co-habiting couples in England and Wales. Research suggests that a great number of them think the law, broadly speaking, affords them the same protection as married couples.”
From my practice, I am aware that there is a commonly held belief in society that there is such a thing as a “common law husband” or “wife”. The stage at which this status is perceived to apply varies from individual to individual, with some holding the view that once you have been living together for six months, or two years, or even some other period of time, that you are as good as married. The dangerous assumption that follows such a belief is that the cohabitee will believe that they are entitled to the same rights as a married couple in the event of the relationship breakdown, or on the death of their partner.
This is very much not the case, and the general belief that there is such a thing as a common law marriage is a complete myth. The act of marriage confers legal rights and obligations that simply are not available to the unmarried couple.
In the event of the death of a cohabitee, if no Will has been prepared, it could leave the surviving partner in the position where they do not inherit any of their partners’ property or assets.
What about the situation where a relationship between an unmarried couple sadly breaks down? The discretionary powers of the Court available for divorcing couples do not apply to cohabiting couples. There is no provision for adjustment in relation to income or assets such as pensions. Where there is a dispute as to property, the Court will adjudicate on the outcome by applying the law of property and trusts. Where there is no express declaration as to the ownership of the parties’ home, each case will turn on its own particular facts and the Court will have regard to, amongst other things, the parties’ financial contributions towards the purchase of the property and the payment of outgoings, any discussions between the parties’ as to their intentions regarding the property and the reliance placed on those discussions. The position is complex and many view the current law as unsatisfactory. Recommendations for reform of the law to provide greater rights for cohabiting couples have been made, but it remains to be seen whether these proposals will be implemented and, if so, when.
Clive Anderson heard from Baroness Deech and Lord Lester amongst others, who put forward opposing arguments. I have to say that I found some of Baroness Deech’s comments unfair, particularly those referring to the gold-digging women who wish to benefit from their partner’s money, and the comments about lawyers hoping for more legislation in the area to boost their income. Regarding the second point, I do not recognise that as being typical of the lawyers I deal with, the vast majority of whom are members of Resolution who promote a non-confrontation and cost-effective approach to Family Law. Furthermore, the current system is so complex and uncertain it can lead already lead to huge costs for all parties. Despite their differences, the speakers agreed that the current system produces too much uncertainty. One thing that is clear to me is that there really does need to be more done to raise awareness of the rights, or rather the lack of rights, that cohabiting couples have.
Image by David K