It is likely that we have all ticked a box on a form at some point to confirm whether we are “married”, “single” or in a “common law marriage”. As a specialist family lawyer, this third option – the common law marriage – is a particular bugbear of mine. Why? Because a “common law marriage” has no legal status, and it perpetuates a dangerous myth that unmarried couples can obtain similar rights to those of married couples if they have lived together or have a child.
The Current Law for Cohabitants
When a married couple divorce, or a civil partnership is dissolved, there is a legal statutory framework that empowers the Family Court to make financial orders to divide the assets and provide ongoing maintenance from one party to another.
By contrast, there is no dedicated statutory framework to guide cohabiting couples how their financial matters should be resolved upon separation. The types of claims that cohabiting couples can make when they separate are limited because the current law was not designed with their situation in mind. Claims must be made via the civil courts, whose powers are largely confined to determining ownership of property and ordering its sale, and the process can be prohibitively expensive and complicated to navigate. Financial provision in respect of children can be claimed via the Child Maintenance Service or Schedule 1 to the Children Act 1989, but such claims are restricted for the benefit of the child(ren) only.
The law has failed to keep pace with the increasing number of couples choosing to form families without getting married, and the limitations of the law have never been more apparent. The financial outcomes for many cohabiting couples when they separate are unfair compared to divorced couples in comparable situations. Many victims of domestic and economic abuse can also find themselves in the unenviable position of having to choose between staying in an abusive relationship or separating with no financial security. Children are often caught up in this dilemma, which can have significant implications for their wellbeing
The Proposed Reforms
In recognition of the wholly unsatisfactory state of the law in this area, a public consultation titled “a fairer end to relationships” is underway. The consultation is part of a wider programme to modernise family law, and its stated aims include prioritising fair outcomes for children, protecting the vulnerable, providing a clear and accessible framework whilst preserving the distinct status of marriage.
To make the law for cohabitants fit for purpose, it is proposed that:
- There should be a new statutory framework of rights and responsibilities for eligible cohabiting couples when they separate
- Eligibility would be limited to adults who have lived together for at least three years or live together and share a child
- Individuals would need to apply to the Court within two years of separation for the claim to be considered
- The Court’s starting point would be for each person to keep what they legally own, and to only depart from this position where it is necessary to meet an individual’s defined need. The children’s needs come first
- There will be a strong emphasis on clean breaks
The Government is also consulting on introducing binding qualifying nuptial agreements, supported by safeguards to ensure that any decision to enter into such an agreement is fully informed and freely made. Currently, nuptial agreements (“pre-nups” and “post-nups”) are not automatically enforceable in England and Wales.
What Would This Mean for Cohabiting Couples?
The introduction of a dedicated statutory framework would be a very welcome step towards reducing the hardship separated cohabitants and their children currently face.
However, cohabiting couples should be under no illusion that the proposed reforms will entitle them to the same rights as married couples; they make it very clear that marriage is to retain a unique status. Unlike the Court’s approach to a divorce, there would be no starting assumption of a 50/50 split of the assets. The Court would also interpret cohabitants’ needs more narrowly than on divorce and would not take discretionary needs into account. The proposed reforms would also require the Court to impose a clean break as soon as it is just and reasonable to do so, whereas on divorce the emphasis is on the ability of the weaker financial party to transition to independence.
Therefore, cohabiting couples should not expect to receive a more favourable outcome than a divorcing couple in similar circumstances.
What Should Cohabiting Couples Do Now to Prepare?
It is never too early to seek advice from a specialist family lawyer on the steps you can take to establish and clarify your intentions around property ownership and financial contributions in the event of a separation. This is not solely about protecting assets or wealth; encouraging openness and transparency between couples about finances from the outset of a relationship can be empowering.
You can speak to us about reviewing any existing cohabitation or nuptial agreements. We can help you to ensure that they remain an accurate reflection of your intentions. We can also consider with you the option of entering into a cohabitation or nuptial agreement if you do not already have one. Drafted properly, a cohabitation or nuptial agreement allows couples to decide for themselves what they consider to be a fair financial outcome on separation in light of their specific circumstances.
Rayden Solicitors are experts in all areas of Family Law, including cohabitation law. Please contact us to speak to one of our team.
