There have been calls for years now for the law to do more to help unmarried, cohabiting couples. When a couple marries, they immediately get certain legal rights and liabilities. So, for instance, their joint property and assets are split if they divorce, with a starting point of a 50/50 split and this is regardless of who has been paying the mortgage or generating the savings.
Cohabiting couples have no such protection. There is a common misconception around the idea of common-law husband and wife – basically a belief that if a couple has been cohabiting as man and wife for a certain amount of time, they automatically get some rights. This is completely untrue. Cohabiting couples have no rights unless a specific agreement is drawn up between them, something which is not common.
This lack of rights flies in the face of statistics which show more and more people are choosing to live together without marrying – the numbers have more than doubled from 1.5 to 3.3 million couples in the UK, in 20 years. So what could the law do to help them?
How about an ‘opt-in’ option for cohabiting couples?
One of the ideas that cropped up in conversation with colleagues on this topic was to borrow from the concept of GDPR. Stick with me on this. The new data protection laws are not the most exciting topic but they do require organisations who hold information about a person to get that person to actively opt in to allow them to keep information and communicate with them going forward.
The previous state had been that often people would have to opt out. Could that work for cohabiting couples? Could we create a state where once a couple moves in together and have been together for a certain amount of time, their assets are automatically considered joint – or at least the ones they accrue while in the relationship and acknowledge what both contribute towards a property, no matter who owns it. Perhaps most importantly, it could also cover certain arrangements for any children born into the relationship.
This may be tricky to manage, but somewhere the law could definitely help. It would certainly go some way towards formalising the widely held common-law wife/husband myth which many outside of the legal profession believes exists anyway.
Education for unmarried couples
Another area where perhaps a change is needed is in education. When a couple chooses to move in together there should be some easily accessible (and free) information explaining exactly what rights they have as an unmarried couple – namely none. That way individual couples could choose to put in place a cohabitation or living together agreement if they want some measure of protection.
A couple of our lawyers would like to see conveyancing solicitors being obliged to explain to unmarried couples buying a property together that there is nothing in family law to safeguard their set up and encourage them to take additional legal advice before setting up home.
An alternative to marriage
Offering civil partnerships for heterosexual couples would be controversial but this does have potential. The current debate around civil partnerships is looking at two options: change the law to allow boyfriend and girlfriend to get a civil partnership, or scrap them all together now all parties (straight or gay) can get married. Originally brought in to support the rights of homosexual couples who could not, at the time, marry, giving them similar rights to married couples, the same principle could apply to cohabiting couples. The problem is that at the moment, only same-sex couples can enter into a civil partnership. It does also beg the question that if a heterosexual couple goes as far as a civil partnership, why not just get married and get the legal rights that way?
It’s fair to say that discussion among our lawyers on this topic was extensive and there are enough ideas to perhaps inform another blog. One thing all agreed on though was that they did not expect the law to change any time soon to specifically help unmarried couples who live together. Instead, the onus is on the couple to make themselves aware of how the law would treat them if their relationship were to break down.
Woolley & Co lawyers
Woolley & Co family law specialists