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Family Law Blog

Comment on divorce & family law 

How can the law help unmarried couples?

10 Comments

unmarried couple holding hands and walking.

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

Comments

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I have to say that my view is that opposite-sex couples should also be allowed to have a Civil Partnership to give their relationship legal status where needed and so that they understand the legal and financial implications for them and their children, without having to go down the ‘marriage’ route if they don’t want to. I doubt this will ever come about though.

By Michelle Brammer on Thursday May 3, 2018

The law is absolutely not fit for purpose when it comes to cohabiting couples and unfortunately, conveyancing solicitors especially aren’t providing cohabiting couples with proper advice about what their options are. I speak to no end of people saying ‘yes my parents paid the deposit but we own as joint tenants’, so parents aren’t protected, and conveyancers consistently fail to record advice regarding how to own a property or even explain it properly in the first place.

By Ian Giddings on Thursday May 3, 2018

I think I have said this before, but why should there be any difference in terms of who you love or wish to commit to? Everyone should be entitled to marry or have a civil partnership - for me (and I know I am weird on this) marriage holds religious beliefs/elements, whereas a CP does not. I don’t see the need for any discrimination. I still find that people believe that they are “common law” husband and wife when they have lived together for 30 years and are shocked to find that they have no legal protection in the same way married or CP couples do - that is the biggest issue that needs to be addressed. I feel this is by way of educating people as to the difference between cohab and marriage / CP, rather than a change in the law, which I doubt will ever happen. The law sees parents as “equal” in terms of PR and children matters whether married or not, but 1973 legislation is way behind and gives them no financial protection whatsoever.

By Catherine Edmondson on Thursday May 3, 2018

Some cohabiting couples do have rights. However, I agree with Ian. Not fit for purpose and too complex to resolve after the event without legal advice.
The Urban Myth of common law man and wife still exists ( 2/3rds of people in a recent survey). As does a belief that if you leave everything to one another in a will you’ve somehow protected everyone - that only works if someone dies, not if they separate.

By Tamara Glanvill on Thursday May 3, 2018

Yes YES yes the law does need to change! If I had my way then in a situation with an unmarried couple with children, the carer would be entitled to a payment in addition to child support. This could be a % of the Gross income or linked to reasonable needs and should be for a minimum period of 12 or 18 months from the date of order or date of separation. Property issues are covered by Tolata so no new law needed and child support is covered by the CMS so no new law needed there. Securing a payment from the other party for legal fees if the entitlement for income and Tolata claim is disputed should be almost automatic but repayable if appropriate, such as claimant lied, made a groundless claim etc and for goodness sake what else can we do to get rid of the common law wife myth!

By Karen Agnew-Griffith on Thursday May 3, 2018

I agree education regarding property ownership when deciding to have children and on inheritance is vital but this does assume an amount of planning. Lots of relationships and families are fluid (sometimes chaotic) not necessarily planned.

In terms of law reform, if we want to raise children with security, protect against relationship generated disadvantage and provide security in old age then are we looking at attributing financial responsibilities to people (beyond those that exist to provide for children) who don’t want (or are actively avoiding) that commitment? I’m not sure how comfortably that sits or whether it may even lead to less commitment.

Saying that, if people had to ‘opt out’ rather than ‘opt-in’ to responsibilities when cohabiting there may be more discussion about financial and practical commitments and responsibilities. What a wonderful thought if a cohabitation agreement were to become the norm rather than the exception!

By Kathryn McTaggart on Thursday May 3, 2018

On 14 and 15 May 2018 the Supreme Court will hear a case whereby an opposite sex couple say that they should be able to have a CP. The thrust of their argument is that as same sex couples can either marry or have a CP they are being discriminated against by not being allowed to do so. The discrimination is via articles 14 and 8 taken together of the European Convention on Human Rights. The Government is unable to make its mind up on this issue.
I agree with couple - they are being discriminated against. The CP numbers rose last year so some same sex couples prefer them over marriage.

By terry sheridan on Tuesday May 8, 2018

Interesting case, Terry.

It is hard to see any justification for straight or gay couples having any different rights at all.

By Andrew Woolley on Tuesday May 8, 2018

Even Cohabiting couples should have rights.The couples should be literate before knowledge.If they are literate they can make the decision of what is right or wrong.Instead of finding issues.Some kind of planning is needed regarding property ownership when planning for children.

By sneha singh on Friday June 1, 2018

I agree with you. I almost think that couples should have to undertake some sort of “pre-relationship course” to “qualify” for a marriage, civil partnership or other arrangement which has legal consequences.

It would not be cheap, but it would be cheaper than ending up in Court!

By Andrew Woolley on Wednesday June 6, 2018

What do you think?


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