Unmarried Couples Don’t Always Intend An Enduring Relationship

I have recently read an interesting article by Jonathan West and Alex Matheson in the Solicitors Journal regarding unmarried couples.

It is becoming more apparent that cases of unmarried couples appear to be being decided on the principal that the relationship was entered into under the expectation it would endure but statistics and instructions to Cohabitation Solicitors seem to be telling another story. 

Recent high profile cases of separation involving celebrities such as Actor, Jonny Depp and Artist, Damien Hirst outline the problems experienced by unmarried families. 

According to national statistics, cohabitation is on the increase, up to 2.9 million since 2.1 million in 2001 and over 40% of births are outside of marriage. The problems faced are that many people wrongly assume that their rights are covered by ‘common law marriage’ through cohabitation, when unfortunately they would require a cohabitation agreement. Common law marriage has not existed since 1753!

The legal sector expresses concerns about the lack of legal framework for cohabitants. In marriage, there are Orders available under the Matrimonial Causes Act 1973, however this does not apply to cohabitants. Generally cohabitation disputes are dealt with under the Trusts of Land and Appointment of Trustees Act 1996, under strict rules of contract law.

Cohabitants who separate are not able to claim maintenance for themselves on separation unlike married couples, although an exception is that cohabitants can claim under s.17 Married Women’s Property Act 1882 if they are engaged to their partner for over 3 years without breaks. Father’s are not automatically given parental responsibility for children, unless the child was born after 2003 and their name appears on the birth certificate. Cohabitees are not their partner’s next of kin, nor do they automatically inherit property when a partner dies intestate.

Cohabitees are however able to minimise these difficulties, for example a property can be held in joint names from the outset with each party being a beneficial tenant in common, this would form a cohabitation agreement. However, generally people only seek legal advice upon separation and not from the outset. 

Luckily, children are generally treated as those with married parents under the Family Law Reform Act 1987. However, this is strictly for the benefit of the children and not for the separating parties. 

Generally, the issues that Cohabitation Solicitors come across are the division of the former family home. Case law including Stack v Dowden and Jones v Kernott attempts to provide Solicitors with guidance as to how property can be divided but generally each case is determined on its own facts. 

In 2008, a bill was presented to Parliament regarding the disparity between cohabiting and marriage. However, despite much support this was halted in 2009. Unfortunately, the current Government has rejected the proposals of Lord Lester contained in the bill. The courts are therefore tackling the issue through common law.

There is an agreed consensus that properly considered legislation is required in this area to avoid such issues in ever-changing social conditions.

This entry was posted in Family Law.