Edition 2 - The family issue
The rapid rise of unmarried couples living together has highlighted how UK law hasn’t kept pace, with cohabiting couples often unaware that they don’t have the same rights as those who are married. We look at the different ways in which non-married, cohabiting couples are treated around the world.
In the past 18 months, we have spent more time in our homes than ever before and those that we choose to share those spaces with have featured far more heavily in our lives. A growing number of couples choose to live together rather than marry – with cohabiting couples now the fastest-growing family type in the UK.
According to the UK’s Office for National Statistics, in 2018 61.4% of the English and Welsh population over the age of 16 were living with a partner. Nearly half, 48.3%, were living as married or civil partner couples, while 13.1% were cohabiting, with 10.4% of those cohabitants having never been married or in a civil partnership. With Boris Johnson the first cohabiting prime minister to enter No 10 Downing Street (and since married), data shows the number of couples living together has increased 25.8% in a decade.
The problem is that the law hasn’t kept pace with the social acceptability of non-married couples and, according to the British Social Attitudes Survey from 2019, 46% of the population believe they have the same rights whether they choose to marry or not, when in fact they don’t.
“There is no such thing as a common law marriage,” says Jane Craig, who heads the family department at Penningtons Manches Cooper. “It doesn’t matter if you have been living with someone for 25 years and have five children together, you still do not have the same rights as people that are married.”
The misconception can have quite serious adverse consequences, particularly for the economically vulnerable partner in the relationship, which is usually but not always the woman.
If a couple has been living together for 25 years, has three children and a shared home in the father’s name, the outcome of a separation will be dramatically different for the mother depending on whether she is married or not. “If the couple is married, all the assets built up during the marriage are shared in the event of a separation, with the starting point being a 50/50 split,” says Craig. “The court treats the contribution made by a spouse who looks after the children and the home as being of equal value to that of the spouse who is the main breadwinner. If the wife is not working at the time of the break-up and her earning capacity has been reduced because she took time out to bring up children, the court can award spousal maintenance for a period of time.
“If the couple is married, all the assets built up during the marriage are shared in the event of a separation, with the starting point being a 50/50 split.”
In Ontario, Canada, Sarah Boulby of Boulby Weinberg says that after three years of cohabitation, couples are treated as spouses and have the same rights for separation and estate purposes as if they were married. The same does not apply for property, however: “In Ontario, married couples share the wealth generated during marriage, with certain exceptions, and if you’re not married you don’t have those rights. There is little public awareness that that’s the case, even though it has been so for decades.”
Others fail to realise that cohabitation rules vary between different provinces of Canada and different states of the US. “There are jurisdictions in the US where spouses that aren’t married have all sorts of rights and others where they have none, like Florida,” says Boulby. “We have a lot of Canadian citizens who move back and forth. We had a case involving someone from Florida and he was shocked to discover he would have any support obligations at all to the woman he lived with because he was coming from a state of the US where he had none.”
“The court can also adjust the capital split and give more than half the capital assets to the economically weaker party if it is necessary to do so in order to meet housing need.” But if the couple is unmarried, the situation is very different: “The contribution made by looking after the children and the home has no bearing at all on the outcome and there is no presumption that assets built up during the relationship will be shared. The woman is living in a house that isn’t hers, she has made no financial contribution and so she is not entitled to anything: no maintenance and no share of the house.”
Lawmakers in England and Wales have recognised this inherent unfairness and a new Cohabitation Rights Bill was drafted and put before the House of Lords in 2020, but it is a long way off becoming law. The proposed legislation would apply to cohabitants with a minor child and those that have been cohabiting for three years, and would cover property, pension sharing and extending intestacy rules to include qualifying cohabitants.
Other countries have come up with meaningful legislative changes. In Australia, the law was changed in 2009 to give so-called de facto couples, whether same sex or opposite sex, the same rights and obligations as married couples. The country uses the concept of spouses, who can be either married or unmarried but have the same entitlements.
Ian Kennedy AM, of Kennedy Partners in Melbourne, says: “To have a claim under the Family Law Act, the couple needs to have been in a de facto relationship for at least two years, or have a child of the relationship, or one of the partners has made a substantial financial or non-financial contribution, including as a homemaker or parent. If you meet those criteria, then the court can make an order for the division of property and/or for spousal maintenance. It works well in most cases and produces equitable outcomes.”
Meanwhile in Ireland, Jennifer O’Brien of Jennifer O’Brien Solicitors, Irish Family Law Chambers, says the law changed in 2010, with the original intention of giving civil partners the same rights as married couples: “If you are cohabiting, you don’t have rights to the other person’s property as you would if you were married, but in the event that the relationship breaks down, then if you want to bring proceedings, you can make a claim,” says O’Brien. “If your partner passes away, you can also make an application to court. It is not easy – you have to show how long you lived with someone and that you were financially dependent on them, and a lot of cases fall down at that hurdle. There are also very strict time periods such that a claim must be made within two years of the relationship breaking down.”
“If your partner passes away, you can also make an application to court. it is not easy – you have to show how long you lived with someone and that you were financially dependent on them, and a lot of cases fall down at that hurdle.”
In Ireland, as elsewhere, the rules do not deal with children, who come under separate legislation. But even where child maintenance is being agreed, there can be further issues for the unmarried parent, who is not entitled to any capital provision. Schedule 1 of the Children Act in England and Wales allows a mother with whom the children of a former cohabiting relationship are living to apply to the court for an order that the father provides a home for the children and herself while the children are minors. However, when the children grow up and leave home, the property reverts to the father and the mother can be left homeless with no capital, despite the father potentially being extremely wealthy. Craig explains: “The clear message is that you need a cohabitation agreement if you plan to live with someone and you need to take proper legal advice to consider your position. Advice from a friend might not be relevant to your particular situation and may well be based on misconceptions about common law marriage.”
Common law marriages are recognised in Israel and cohabiting couples have the same rights except when it comes to the division of assets, says Lawyer Edwin Freedman. Today, about 30% of Israelis do not formally marry and, in some cases, they are better off than married couples.
Common law spouses must prove their partner intended for a property to be jointly owned, whereas a married couple is subject to the equal distribution of marital assets.
But once a couple is divorced under Jewish or Islamic law, the former spouse is not entitled to spousal maintenance, whereas under common law rules there is no impediment to asking for alimony.
“The clear message is that you need a cohabitation agreement if you plan to live with someone and you need to take proper legal advice to consider your position.”
It is also important for unmarried couples who move between countries to take legal advice in all relevant jurisdictions if they are planning to live together or, just as importantly, if their relationship is rocky. Craig concludes: “Investing in legal advice at an early stage can avoid many thousands of pounds (or dollars or euros) worth of litigation at a later stage.”
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