Vardags Family Law Essay competition 2023/24 | Francesca Jackson

Francesca Jackson - Lancaster University

Sensing the opportunity: why the time is ripe for the UK to grant legal rights to cohabitating couples

Introduction

For law students up and down the country, one of the most surprising things they will learn on their undergraduate degree is the lack of legal rights for cohabitating couples. Often, the law is criticised in student essays for failing to offer adequate protection to unmarried couples. But calls for law reform can no longer just be confined to student law essays, in view of the ever- increasing number of these types of families.

When figures from the most recent 2021 census were released, they showed that the unmarried family has become the fastest-growing family type in the UK. This confirms something that has long been suspected: that marriage is no longer the go-to choice for couples. Far from it, in fact, with the marriage rate now at its lowest since records began in around 3.6 million in 2021, an increase of 144%. This growth is only set to continue. The census figures showed that younger people in particular are choosing not to get married, meaning that a quarter of all couples are expected to be unmarried by 2031.

Common law marriage: a persistent problem

Against this backdrop, the fact that cohabitating couples in England and Wales are left without legal protections when they break up becomes even more startling and alarming. When cohabitating couples separate, it is the ownership of the home they shared - and the value invested in it – that is likely to be the biggest source of contention. But currently, if a couple fails to agree that ownership of the family home is to be shared, and one partner has not made financial contributions to its acquisition, they are left without a remedy. These disputes are already common, and will only become even more so as the number of cohabitating households increases.

A large part of the problem is that, to this day, the myth of the ‘common law marriage’ persists. Worryingly, research from 2019 showed that 46% of cohabitating couples in England and Wales believe they are in a ‘common law’ marriage, complete with the same legal rights as spouses. This figure rises to 55% for cohabitating couples with children. Although there have been public awareness campaigns warning cohabitating couples that there is no such thing as a common law marriage, the myth is so deeply embedded in society that it is stubbornly hard to dispel. As such, many cohabitating couples continue to erroneously believe that they do not need to put their legal affairs in order, as by merely living together they are protected as so- called common law spouses.

The difference at law between married couples and cohabitating couples

This belief could not be further from the truth, as unlike married couples and civil partners, cohabitating couples do not benefit from automatic legal protection when a relationship ends. For married couples, the starting point for the division of assets is that both parties are entitled to an equal share, which can then be adjusted accordingly to reflect the financial needs of the parties and their respective contributions to the marriage. Although there is no set formula for calculating appropriate financial provision on divorce, under s. 25 Matrimonial Causes Act 1967 the court is under a statutory duty to consider all the circumstances of the case, having regard to the specific factors set out by s.25, before distributing the parties’ available resources in a way which achieves a fair outcome. Each party’s contributions towards, and in, the matrimonial home, are taken into account, both before and after the relationship breakdown. Importantly, the contributions do not have to be monetary, as the courts do not discriminate between the contributions of the money-earner and the child-carer/home-maker.

However, rather than being treated equally with married couples and having their home divided up according to principles of family law, cohabitating couples who separate are instead subject to the complexities of property and trusts law - rules which were never developed with cohabiting couples in mind in the first place - when dealing with the distribution of assets. Non-owning partners wanting to claim to a share in the property when a relationship ends must demonstrate a ‘beneficial interest’ in the home, which may be evidenced by a signed and witnessed document stating that the non-owning partner is entitled to a particular share in the property. Unsurprisingly, most people enjoying a new relationship never get around to making such a document, as they understandably do not want to think about the possibility that their relationship could go wrong.

As a result, many non-owning cohabitees have to pursue a claim through the Trusts of London and Appointment of Trustees Act 1996 (TOLATA) - a process which is as acrimonious as it is costly. Under TOLATA, the person with the financial interest (e.g. whoever paid the initial purchase price for the house) is deemed to be entitled to the property, and any financial contributions of the other cohabitee (e.g. mortgage repayments) have to be demonstrated in order for them to be given a beneficial interest in the home. This has historically disadvantaged – and indeed, continues to this day to disadvantage – women, who are often the financially weaker party. In sole ownership cases – where the home is placed at law in the name of one party alone - the starting presumption is that the sole legal owner of the house is also the sole beneficial owner. As such, a non-legal owner must prove their beneficial interest in the property. However, non-financial contributions, such as work in the home or childcare responsibilities, are not recognised. As these are traditionally feminine roles, the case law in this area is replete with women who have been left without any rights in their family homes in spite of their extensive non-financial contributions and commitment to the relationship.

Cohabitants without a financial interest are forced to have recourse to the law of trusts. The most commonly-invoked trust is the Common Intention Constructive Trust (CICT), where the couple has a common intention (expressed or implied) towards a home and the claimant has relied on that intention to their detriment. Although both financial and non-financial contributions made can be considered when inferring a common intention for the purposes of the CICT, it is still difficult to prove that a common intention exists. After all, it relies on the parties’ recollections, which introduces evidentiary issues as parties may seek to reinterpret the past in self-exculpatory or vengeful ways, making it difficult to accurately gauge the ‘actual’ intentions of the parties.

The calls for reform: loud, and getting louder

It can be seen that cohabitating couples remain at a striking disadvantage upon the breakdown of their relationship compared to those who are married or in a civil partnership. Unsuprisingly, organisations and practitioners alike have long called for reform of this area. For example, The Family Law Reform Now Project, a group of academics, practising lawyers and policymakers, has recently advocated for cohabitation reform. Similarly, the organisation of family justice professionals Resolution has branded the law in this area ‘unfair’, ‘not fit for purpose’ and liable to leave couples ‘at significant financial risk’. Dissatisfaction with the state of the current law also comes from lawyers, who are frequently forced to advise disappointed cohabitating clients that, regrettably, the law cannot provide a solution. Indeed, a 2017 Resolution member survey showed that an overwhelming 98% of respondents were unable to help their cohabitating clients due to the lack of legal protections. You may ask that, if there is clear consensus that law reform is needed, what is the problem?

The answer is a lack of political will. Back in 2007, a comprehensive reform proposal, produced by the Law Commission, was shelved by ministers. 15 years later, history repeated itself when a 2022 report produced by the Women and Equalities Committee, calling for the introduction of remedies for cohabitants who have lived together for a specified period of time or have a child together, was also disappointingly rejected by the government. Promisingly, shadow Attorney General Emily Thornberry at the 2023 Labour Party Conference vowed that, if the Party won the next election, it would seek to end the ‘injustice’ of women in cohabitating couples being left with no rights when those relationships end, although whether that vow will ever come good remains to be seen.

Why the resistance to law reform? There are a number of factors commonly cited against strengthening the rights of cohabitating couples, such as that it will undermine marriage or impose rights on couples that do not want them. These objections were summarised by one former High Court judge who, following Emily Thornberry’s pledge to introduce legal protections for cohabitating couples, argued that it would ‘undermine’ the commitment of marriage and be ‘incredibly anti-libertarian’.

However, whilst respecting these criticisms, neither seem particularly convincing. In relation to the former, no proposal to reform cohabitation rights in England and Wales has, to this date, ever called for cohabitants to be treated identically to married people. Any reform in this area would not seek to collapse the distinction between cohabiting and married couples, but would instead seek to create a legal safety net for cohabiting couples. In relation to the latter criticism, the argument that reform might impose rights on couples who do not want them flies in the face of research showing that a significant proportion of couples do not feel the need to marry because they believe that they are already protected by the law. For cohabitating couples who are knowledgeable of the law, they could opt out of legal protections, thereby exercising and preserving their autonomy.

It is worth mentioning that an additional fear commonly raised is how such a scheme would operate, such as how ‘cohabitants’ would be defined and whether the law would inadvertently catch casual relationships or even flatmates. The answer to this more complex objection to strengthening the rights of cohabitants lies in careful drafting and drawing inspiration from other jurisdictions. For example, both Scotland and Ireland have legal frameworks that operate on relatively clear parameters and tend to be used by couples who were in lengthy, committed relationships with children. Indeed, former President of the Supreme Court and family law academic Lady Hale has herself argued that there should be a ‘remedy for unmarried couples in English law, along the same basis as in Scotland’ on the breakdown of a relationship.

So what would this remedy look like? As we have seen, cohabitants currently have no automatic entitlement to financial support from each other or a share of assets by simply living together. Therefore, to prevent a less well-off partner being severely disadvantaged by a break- up, separating unmarried couples should be granted automatic rights in terms of property on the breakdown of a relationship within the framework of an opt-out system. This is because informed couples who are aware of such rights and choose not to have them can exercise their autonomy to opt out of the system, whilst couples who were unaware of such rights and erroneously assumed they had common law rights would benefit automatically. Whether or not this legal change will indeed be ushered in by a Labour government remains to be seen, but whoever the next government is should consider it carefully.

Of course, reforming the law in this way would still leave cohabitees whose relationship comes to an end vulnerable in other areas. For example, when one partner dies there is no right for the other to inherit part of the estate, regardless of how long they have lives together and even if they had children together. Again, this is an area where the law de lege lata just does not reflect the modern family. But given that cohabitees currently have no legal status whatsoever, and no automatic rights in most circumstances, taking this first step of granting automatic property rights will go a long way towards remedying the injustice currently faced by cohabitating couples.

In conclusion, it is high time that cohabitation reform was taken seriously, put back on the political agenda and that cohabitating couples are offered the basic legal protections which they deserve. Public awareness of the issue of common law marriage remains low and, in light of the 2021 census highlighting the reality of modern families, the time is overripe for cohabitation reform – not just in a student essay, but in reality.

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