Why are the laws surrounding cohabitation being reformed?
Today, a Parliamentary Committee has recommended that the law dealing with how cohabitants are treated when relationships break down should be reformed.
The Committee noted that: ‘The current law applicable to cohabitants on relationship breakdown can be costly, complicated and unfair. Complex property law and trusts principles often require the financially weaker partner—often women—to demonstrate direct financial contributions to the acquisition of the family home, while childcare and other non-financial contributions go largely unrecognised.’
The ‘Common Law marriage myth’
They also observed: ‘It is staggering that so many people in England and Wales believe in the common law marriage myth [i.e., that, after a period of living together, rights are acquired equivalent to those enjoyed by married couples]. This misplaced belief in legal protections can have profound consequences for cohabiting partners—many of whom do not realise the reality of their situation until it is too late.’ The Committee were told: ‘A 2019 British Social Attitudes Survey demonstrates the prevalence of this ‘common law marriage myth’. Almost half (46%) the total England and Wales population wrongly assumed cohabitants living together form a ‘common law marriage’. In households with children, 55% of people believed in common law marriage.’
Family Mediators routinely see the problems caused by the lack of a sensible law protecting cohabiting couples and ensuring fairness. And, as more and more couples opt for cohabitation rather than marriage (often delaying marriage so that they can save for a wedding, or opting out so that the money saved can be used towards the cost of a house) the need for reform becomes more urgent. In 1996, there were 1.5 million cohabiting couples. By 2021, that number had grown to 3.6 million.
There is another group who fall into the trap – those who have entered into a ‘religious-only marriage’ (most commonly in the Muslim Community) whose marriages are not recognised under the Marriage Acts and who cannot, therefore, rely on the financial relief provisions of the divorce laws.
So why do some politicians object to reform? One reason is a misplaced belief that to give vulnerable people living together outside of marriage would, in some way, undermine the institution of marriage. Hmmm… Well the lack of reform doesn’t seem (if we reflect on the growth in the number of cohabiting couples and the fall in the number marrying) to have much helped the institution of marriage.
The last major report, by the Law Commission in 2007, suggested some limited reforms, with qualifying conditions before rights were given to cohabitants. Even these have been repeatedly rejected – a peer has, on a number of occasions, introduced a Bill in the House of Lords to give effect to those recommendations, but without success.
I fear it may be as long as another 15 years before reform is finally achieved.
What can cohabiting couple can do to protect their rights?
In the meantime, here’s what you can do if you are living together or plan to do so without (at least initially) marrying:
Have the unromantic conversation about what you would expect to happen if your relationship doesn’t work out – many don’t. Psychologists recognise ‘optimism bias’ – the ‘rose tinted spectacles’ expectation that you and your partner will be different and that, after all, you are both ‘really nice people’ so that, if things don’t work out he/she will want to ‘do the right thing’. Family Mediators see couples at the other end of the relationship, by which time the optimism and goodwill have usually faded.
Enter into a living together agreement. If you are not sure what to include, arrange a meeting with a Family Mediator who can facilitate the conversation and help you to prepare a Protected Summary of Proposals on which you can each take advice before making a commitment.
Make sure, if you buy a house together, that your intentions are recorded on the Land Registry Transfer Form (TR1). This enables you to determine whether you will own equal shares or whether unequal contributions will be reflected in uneven shares.
Remember (and tell your friends) that there is no such thing as a ‘Common Law Marriage’.
Read the Report The rights of cohabiting partners, HC 92 and consider raising the issue with your MP.
Paul Kemp 4th August 2022
[i] House of Commons Women and Equalities Committee: ‘The rights of cohabiting partners’