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Family Law Blog

Comment on divorce & family law

Time for English cohabitation law to come into the 21st century

As the proportion of unmarried couples living together continues to rise isn’t it time for cohabiting couples to be given the same legal rights as marries ones?

The office of National Statistics has reviewed the figures from the 2011 Census against the 2001 Census and confirmed that the number of households made up of unmarried families living together rose from 14% to 17%. In the same period the number of households made up of married families dropped from 70% to 65%.

If we needed evidence that society is continuing to change and not everyone  wants to follow the traditional route of getting married before starting a family, we continue to have this confirmed by official sources and if seems reasonable to presume this trend will continue.

Strange then that successive governments are still so reluctant to improve the rights of couples who live together following separation. There was a first reading of a Cohabitation Rights Bill in October 2013 but there has been little or no appetite to progress this since then.

Common law marriage doesn’t exist

The rights of unmarried couples to make financial claims on each other following separation remain extremely limited, even if they have been together for long periods of 20 years or more. The concept of “common law marriage” remains a myth that many have assumed exists to their cost. Although financial claims similar to those you see upon divorce can be made under the Children Act, where there are dependant children at home, it is a far less well trodden path and surprisingly few people go down this route.

What still shocks me is that in a situation where one party in a relationship ends the relationship and the other (still more likely the woman) has not worked and instead stayed at home and raised the family say over 10 or 20 years, no financial claims can be made against the other party. If the family home happens to be in his name, she could be in her fifties, unemployed and possibly unemployable, homeless and without any pension in place. She can make no financial claims on her ex partner and he can legitimately ask her to leave his house almost immediately. 

Equal rights for cohabiting couples in England, not just Scotland

Scotland has had legislation in place since 2006 when the Family Law (Scotland) Act came into effect. As well as dealing with household contents it allows for financial provision to be made available, when, as a result of decisions made together, one partner has been financially disadvantaged. This is designed to cover the situation where one partner has given up work for several years to raise children, for example.  

It seems a great shame that for a government that claims to be on the side of families, there continues to be no provision in place to protect individuals who take time out to raise their children. Ensuring unmarried partners are protected in no way detracts from the institution of marriage. It is surely time to be more courageous and less politically restrained so we can ensure fairness in modern society.

Kate Brooks
Divorce & family solicitor, Market Harborough

Blog Author - Kate Brooks

Kate BrooksKate Brooks

Kate is a family solicitor with Woolley & Co, based in Market Harborough, Leicestershire, covering all aspects of divorce and separation.

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