Managing Partner Katie McCann and Partner Michelle Uppal have written for Today’s Family Lawyer, examining calls for cohabitation rights for families in England and Wales.
Katie and Michelle’s article was published in Today’s Family Lawyer, 31 January 2024, and can be found here.
In the 2022 census, cohabiting couples accounted for almost one in five families in the UK – the fastest growing type of family unit of the last ten years. At 3.6 million families, this represented a hugely significant increase of 700,000 families compared to 2012, almost three-quarters of the total growth over that period. Between 1996 and 2021, the number of cohabiting families has grown by an astonishing 144%. This is undoubtedly a seismic shift in the social fabric, one which some lawyers believe the legislature is compelled to react to.
As part of its ‘Vision for Family Justice’ published in November, Resolution, the community of family lawyers committed to resolving family disputes through constructive methods, responded to the data. The body, which consists of 6,500 family law professionals, called for legal rights and responsibilities for cohabitants by default on separation if certain criteria are met.
In many ways, there is an urgent need to address the legal status of cohabiting families. Despite the extraordinary surge in couples who have not married or entered a civil partnership, in England and Wales they currently have little legal protection when they separate. Furthermore, there is no safety net legislation in place to protect those left vulnerable on relationship breakdown.
Yet many in this position believe they are protected via being in a “common-law marriage”, when in reality, no such thing exists. A recent study found that 46% of British adults mistakenly believe in the common-law marriage myth. This is a widespread popular misconception, which has perhaps been sustained by an absence of debate and publicity over recent years. Regardless of how long two people have lived together, or whether they have children, the concept is not one with any legal backing.
The consequences of this lack of status are multiple in the event of a separation. It can be very difficult for one partner to claim a share in the family home or from the other partner’s savings, for example. So, by way of illustration, if your name is not on a deed of ownership or rental agreement, you do not automatically have a right to stay in your own home. Even if you’ve put money into your home by paying bills, helping with the mortgage or deposit, you could be asked to leave and be left with nothing.
In many instances, it can seem normal for one partner to give up work to care for children or elderly relatives, or for the couple to make a verbal agreement where one pays the mortgage and the other pays the bills. But without having an agreement in place, the court cannot make an individual’s ex-cohabitee pay maintenance to support that person just because it might be fair.
Currently the major source of redress for couples who cohabit is litigation under the Trusts of Land and Appointment of Trustees Act 1996.The law contained in this legislation is complicated and claims made under this Act can be very costly indeed, but it is currently the only way cohabiting couples can sort out disputes relating to property that they have lived in together.
It can be argued that the calls to provide unmarried couples with legal rights have real merit. Family law practitioners are, however, divided in their views. Even within our own firm, Managing Partner Katie McCann believes that Resolution potentially goes too far with the release of its demands late last year, while Partner Michelle Uppal supports the reforms and believes the law should better reflect modern society and provide solutions for all types of families, including unmarried families.
Having dealt with a number of cases whereby the weaker financial party is severely disadvantaged by current law, Michelle agrees that without reform many cohabitants, predominantly women, will be left vulnerable and without even the most basic rights in the event of separation – the law should catch up with the radical change to family life in England and Wales.
The founding principle of the review it hopes to see is that all types of family formation should be recognised in law. As well as reform of the law relating to cohabiting partners on separation, it also wants the legislative framework in Schedule 1 of the Children Act 1989 to be reviewed. In addition, there is a suggestion that in the event of the death of a cohabiting partner, their partner should have an entitlement of intestacy.
What these demands amount to is essentially a legal foundation for common-law marriage, in which couples who live together are joining in a legal contract by default. While it is indisputably admirable to call for more legal rights for cohabitants, Katie believes that this seems to be a step too far, a step which could have unforeseen consequences. The line must be drawn somewhere. While Resolution states that the legal framework for cohabiting couples need not necessarily be identical to those afforded to married couples, it is difficult to perceive how a distinction would be made.
An opt-out common law marriage, which is effectively what Resolution is proposing, is not the solution in her view; many property-owning individuals who do not want to be caught by marriage may be inadvertently affected by such a change. Surely the right step forward is an optional and consensual “opt in” system, leaving a defined difference between the status of a married and unmarried couple. Michelle and Katie agree that an opt in system would respect the rights of consenting adults to arrange their own affairs, as opposed to a legislative framework imposed upon them without consent.
If part of the reasoning for automatic cohabitation rights is that nearly half of cohabiting couples think they already enjoy such a status, then an opt-out system merely creates the mirror problem, as couples will be subject to a legal agreement by default, if they are deemed to be in a committed relationship. There is, however, uncertainty as to what that means.
What practitioners like us can agree on is that there are many reasons why couples don’t marry, for example being party to religious marriage ceremonies that do not themselves confer legal rights. The issue is so contentious that family lawyers within the same firm are coming to different conclusions about the shape cohabitation rights should take.
Many family lawyers are of the view that there is already sufficient legislation in place albeit with its complexities, and that to change the landscape is diluting the institution of marriage, if a default “opt out” position is adopted.