There is a common misconception that if you have lived with someone in England and Wales for a set period of time that you are automatically classed as being in a “common law marriage” and therefore afford the same rights as those who are legally married. This is not the case, and a number of people fall into this trap thinking that they will be afforded the same rights as divorcing couple. This couldn’t be further from the truth.
For decades there have been calls to reform the law for cohabiting couples. At present, there is no dedicated law or protection for people who are in a cohabiting relationship, despite societal change and less people choosing to get married in today’s modern society. Any protection in place for cohabiting couples is limited to archaic law (over 100 years old!) or law designed to provide financial assistance for children only.
As a legal jurisdiction, we are behind a number of our European countries in this regard, and in particular our home nation counterparts.
So, what is the legal position within other jurisdictions? This blog seeks to look at the approach which has been adopted by Scotland and the Republic of Ireland.
Law in Scotland
Claims in Scotland are governed by the Family Law (Scotland) Act 2006. To make a claim under the act, a separating couple must fall under the definition of a “cohabitant”. This means they must demonstrate that they have lived together as spouses, or within a civil partnership. The law also applies to both heterosexual and same sex couples. There is no one determinative factor when considering if someone is a “cohabitant”. The court will look at the duration of the relationship, the financial arrangements and whether the parties shared a household. There is also no minimum period of time which people must be living together to be classed as a “cohabitant”.
Financial claims are much more limited and, when considering the financial provision which one party should receive, the courts in Scotland will consider whether:
- One party has derived an economic advantage from the contributions of the other party; or
- One party has suffered an economic disadvantage in the favour of the other party or for the family.
Property claims will be dealt with in accordance with property law.
Any claims must be brought within 1 year from the date of separation, this is a strict deadline and is not one which can be extended.
Law in the Republic of Ireland
The law in the Republic of Ireland is much more restrictive and not every cohabitant can make a financial claim.
In order to be in a position to make a claim, parties must have either:
- Lived together for 5 years; or
- Lived together for 2 years if they have dependent children together.
The court will also take into consideration whether you have been living in an intimate and committed relationship.
Once this hurdle has been overcome, there are a range of orders which are available to separating parties, which are very similar to those arising in the context of a divorce. A separating partner can claim for:
- Maintenance (i.e. for monthly payments to be made by the other spouse);
- A property adjustment order;
- Pension adjustment orders; and
- Provision from the estate following the death of the other spouse
However, unlike claims in the context of a divorce, the spouse who makes a claim must demonstrate to the court that there is a financial dependency arising from the relationship and it would be inequitable to deny their claims.
In addition, if you have entered into a cohabitation agreement with your partner, these are recognised by the court in the Republic of Ireland, provided you have met the statutory requirements.
Conclusion
In both jurisdictions, marriage continues to hold a special status in society, and the cohabitation laws of both countries recognise this special nature.
However, whilst the law for cohabiting couples in England and Wales remains a live issue with which we need to grapple, progress is being made in the right direction to ensure our law reflects the current societal norms.
The proposed reforms in England and Wales are a mixture of the laws of both Scotland and the Republic of Ireland and a detailed blog on the proposed reforms can be found here but only time will tell as to when the law will come into effect and how it will work in reality.
There are also mixed views as to whether reform is required to the current cohabitation law as there are those who would argue that if cohabiting couples wish to have the protection afforded through marriage, then they should considering entering into the contract of marriage to ensure they have some form of financial security and certainty in the event that the relationship breaks down in the future.
If you are in a cohabiting relationship and wish to seek legal advice as to the law which is relevant to your circumstances, please do reach out to speak to a member of the team.
