Half of unmarried couples don’t fully understand their rights in the event of separation

A recent survey undertaken by Family Law group Resolution has shown that nearly half of unmarried couples do not know they lack certain legal rights should they split up.

They have called for reform of Cohabitation Laws to offer greater protections. We spoke to Senior Associate Solicitor Stuart Barton on the subject. 

A recent survey undertaken by Family Law group Resolution has shown that nearly half of unmarried couples do not know they lack certain legal rights should they split up.

This startling news infers there are deficiencies in the current laws surrounding the aftermath of separation, and suggests more needs to be done for individuals faced with this predicament in a society that more and more is deciding not to marry.

The findings within the survey have led to their publishing of a new blueprint for the future of family justice, ‘A Vision for Family Justice’, which calls for reform of current Cohabitation Laws to put in place protections for cohabiting couples on separation.

We asked Senior Associate Solicitor Stuart Barton to provide some expert insight into the key points…

What are the current deficiencies in the law?

“Whether current law in England and Wales is deficient is matter of opinion. However, the position is that cohabiting couples have no automatic right to claim a share of a property solely owned by one or the parties when their relationship breaks down. Such claims can still be made but only under complex principles of equity and trusts that are not easy to understand nor widely known. The risks and costs with such claims are high and predicting the outcome remains impossible.

The above should be contrasted with the position in Scotland where a cohabitant can make a financial claim, if they can show that they have suffered an “economic disadvantage as a result of separation” and that their ex-partner derived economic advantage. There is no specific rule stating what a cohabitant will be entitled to with such a claim. The court has wide discretion as to what financial orders it can make. A claim made on separation must be raised in Court and made before the expiry of the 1 year anniversary of the date of separation. New Zealand and Australia also offer similar protections to cohabitants.

There is a body of opinion that if cohabiting couples want legal protections upon relationship breakdown there are already methods out there to help them, such as marriage/civil partnership, a cohabitation agreement or a declaration of trust. Whilst this is all true, such view is perhaps simplistic.  All of these methods involve varying degrees of expense and all hinge on consent/agreement of both parties. If a cohabitant is a victim of financial abuse/coercive control from their partner, persuading the perpetrator of that abuse to agree to any of these methods may well be a lost cause. Added to this, few victims of such abuse are unlikely to feel comfortable with the idea of marrying their abuser.  

As cohabitation is now so popular in comparison to marriage (the proportion of couples cohabiting in the UK without being married or in a civil partnership rose to 24.3% in 2021), there is therefore an argument that that there needs to be a ‘safety net’ for cohabitants where they can pursue a financial claim against their former partner without the need to rely on complex legal principles or persuading them that consensual options like marriage are the best way forward.

An ‘opt-out’ scheme where cohabitants have automatic protections but could opt-out of them if they wish holds some attraction”

What are the key legal rights that cohabiting couples are not aware of?

“It is less a case of not being aware of legal rights and more a case of not being aware that cohabiting couples may have no legal rights to pursue financial claims when their relationship ends.

The myth of ‘common law’ marriage remains common with many people who mistakenly believe that living together for a certain period automatically confers legal rights as far as property is concerned. Research completed in 2019 showed 46% of the population in England and Wales thought cohabiting couples have a common law marriage with the same legal rights as spouses.

There is also a prevailing problem in that couples who enter into ‘religious only’ marriages in England and Wales (such as in the Islamic Community) are often not legally married. Unless their marriage complies with the formalities of The Marriage Act 1949 to make it legally valid, these couples are arguably in no better position than those who simply choose to cohabit.”

What would the proposed changes do to benefit people in that situation?

“This depends on whether there is new legislation and that is of course down to Parliament. The introduction of new laws similar to those in Scotland would make a difference to cohabiting couples where the relationship breaks down and one party is potentially left homeless/without any financial support to help them move on.  

Nobody is talking here about giving cohabiting couples the same protections/legal rights as married couples or those in Civil Partnerships. It is about striking a balance between the two extremes and finding some type of middle ground.”

And finally, what are your thoughts on the proposed changes?

stuart-barton-profile

Stuart Barton

Senior Associate Solicitor

“Proposed changes” is probably a bit optimistic in my opinion. The outcome of the next Election may be decisive. On 4 August 2022, Parliament’s Women and Equalities Committee said in its report entitled ‘The rights of cohabiting partners’ that it is time for the law to adapt to “the social reality of modern relationships”. The report’s recommendations were:

  1. Reform family law to better protect cohabiting couples and their children from financial hardship on separation (and implement an opt-out cohabitation scheme),
  2. Give effect to the Law Commission’s proposals concerning intestacy and family provision claims for cohabiting partners,
  3. Publish clear guidance on how pension schemes should treat surviving cohabitants,
  4. Review the inheritance tax regime so that it is the same for cohabiting partners as it is for married couples and civil partners, and
  5. Conduct a public awareness campaign to distinguish between marriage, civil partnership and cohabitation.

In November 2022, The Ministry of Justice rejected almost every recommendation in the above report. Instead, it opted to underline the need for existing work on the law of marriage and divorce to be concluded before considering changes to the law in respect of the right of cohabitants. The government was reluctant to promote the interests of cohabitants over and above family members of the deceased. It noted that it remains open to individuals to take it upon themselves to set their affairs in order to ensure provision is made for a cohabiting partner. This is a fair point but not a practical one, for reasons stated above. At the recent Labour Party Conference in 2023, Emily Thornberry MP (Shadow Attorney General) announced that a Labour government would create reform around cohabitation laws. However, the devil of course is in the detail…

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If you are separating, a number of issues may arise on which sound legal advice is essential. We can talk you through alternative dispute resolution options, to help mitigate the need for expensive and drawn-out court proceedings.

Call Stuart on 01254 77 81 48, email enquiries@watsonramsbottom.com, talk to us via live chat or complete our online enquiry form and one of our experts will contact you.

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