Malvina Peci, of Wannops LLP, writes that - as our society changes - marriage is further down the agenda for many couples. It is very common for partners to live together for extended periods of time before getting married, if they marry at all. Cohabiting couples are the fastest-growing family type in the UK, yet there is no legislation in England and Wales that adequately protects such couples on separation and death.
The law is still somewhat behind the times in regards to cohabiting partners and worryingly, many still continue to believe in the ‘common law marriage’ myth and are utterly unaware that they have few or no legal rights. The gap in the law has a particularly detrimental effect on the financially ‘vulnerable’ party, which more often than not are women.
Burns v Burns
The need for law reforms on cohabitation date as far back as 1984 in the case of Burns v Burns, when the Court of Appeal decided that the complainant had no right in the family property despite bringing up the children and contributing to household expenses.
Alarmingly, one in 10 believes they would automatically inherit their partner’s share of the property, even though that’s only actually the case when there’s a Will that specifically states that. In the 2016 case of Joy Williams who lived with her partner Norman Martin for 18 years, but faced losing her home because his share of the house passed to his estranged wife Maureen Martin after he died of a heart attack. Norman and Maureen had separated but never divorced, and Norman had not updated his will. Williams and Norman owned the house as tenants in common. Williams contended that the court should award her his half of the house to provide her security as she has been without his financial support since his death.
Although the judge ruled in her favour, recognising that she had lived with Norman Martin as ‘husband and wife’ for many years, the case highlighted the need to bring cohabitation laws into the 21st century and that there is an untold level of ignorance amongst the public that there is such a thing as common law marriage, but there hasn’t been since the 18th century. All of which means there is now a need to follow the 2007 recommendations of the Law Commission for reform.
There is a Cohabitation Rights Bill currently passing through parliament, which should provide extra protections for people who live together but this is very much still in the early stages and for a bill of this nature to succeed would take years due to the complexity of drafting such legislation since cohabitation affects so many areas of law. And of course anything seen as potentially devaluing marriage or encouraging people not to marry because they have remedies available elsewhere does not seem to encourage parliament to resolve matters any time soon. The question is will England and Wales bite the bullet and follow Scotland’s decision to protect the rights of unmarried people?
In the meantime, cohabiting couples do not just have fewer rights than married couples, they also have fewer state financial protections as they do not qualify for bereavement benefits on their partner’s death and their children will not benefit from their remaining parent receiving widowed parent’s allowance. Because there is still the myth of “common law marriage”, many people still continue believing “we’ve been together for 10, 15, 20 years and have children, I’m obviously entitled to something” when of course this not the case.
The law treats cohabitants on relationship breakdown as two unrelated individuals meaning no account is taken of their relationship (in terms of financial or other contributions they may have made) in order to determine a fair outcome between them on separation or death. This is despite many couples being in long-term relationships and/or having children together and this of course often produces an unfair outcome. For example, if the property is registered in one partner’s name, the other is ‘not entitled to anything, and even if their name is on the property, they are entitled only to however much their interest is in that property.
By contrast, the starting point in a divorce is an equal division of the ‘matrimonial assets’. Separating cohabitees who are property owners rely on the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA). Under ToLATA, if the property is held in the sole name of one cohabitee, the burden is on the other cohabitee to show that there was a ‘common intention’ that they should have a beneficial interest in the property, and relied on that common intention to their prejudice. ‘That boils down to what someone says at a specific moment in time and who the judge believes, so is very much dependent on someone’s credibility and ability to persuade the judge. What you end up with is this very odd situation where the courts look to events that might have happened years ago to actually infer or impute what the couple intended, whom one could argue essentially is a bit of a fiction.
In Burns v Burns in 1984, the Court of Appeal acknowledged that ‘over a very substantial number of years’ the complainant ‘may have worked just as hard as the man in maintaining the family’, but decided that she had no beneficial interest in the property because there was no ‘common intention’ of joint ownership. Furthermore courts do not have the powers to order lump-sum payments or property adjustments that are based on entitlements according to the length of the relationship or contributions that have been made to that relationship, whether in terms of looking after the family or the home. What essentially this means is that the partner who looked after the children and the home but did not contribute financially is potentially left destitute because there are no claims available.
Although the House of Lords and Supreme Court in Stack v Dowden in 2007 and Jones v Kernott in 2011 have sought to somewhat adapt such rules to the ‘domestic context’, the law was never designed to deal with that, and it certainly was not designed to deal with a full array of financial arrangements that arise when a relationship breaks down, because that focuses only on the ownership of a particular property rather than the issue of maintenance and pension, and anything else built up during the relationship.
In some circumstances, a former cohabitant may apply for an order for financial provision in the form of transfer or settlement of property orders, periodical payments or lump sum orders on behalf of their children under Schedule 1 Children Act 1989. However, this only provides relatively short term relief, as there is no legal provision for the payment of maintenance for former cohabitants whatsoever and a vulnerable former cohabitant may become homeless when children reach the age of 18 or cease full time education. If the property is owned by the father in his sole name, once the child reaches 18 (or finishes university) it reverts back to him and the mother is left essentially homeless as there is no reversion of an interest to her. The legal treatment of cohabitees could easily be described as ‘outdated’ and ‘discriminatory’ since it is often women who give up careers to care for children and in the event of separation or the death of their wealthier partner, they could very much end up destitute.
Although Section 1 Children Act 1989 allows an unmarried carer to apply for a court order to stay in the family home and receive periodic payments for the child, including a ‘carer’s allowance’, depending on the wealth of the father, this is ‘heavily monitored and courts go a long way to make sure there is no significant money left over for the mother, over and above what is required for the child. The capital provisions of Schedule 1 are usually only of use in bigger money cases. Furthermore the surviving cohabitant of a partner who dies without leaving a Will, has no automatic right under the intestacy rules to inherit any part of his/her partners estate.
A surviving cohabitant may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if no provision (or inadequate provision) has been made for them either by Will or by operation of the intestacy rules, but cohabitants are not treated in exactly the same way as a spouse, so you could have a situation where if the unmarried party dies intestate and they had children, the child would inherit and the partner could be penniless. By contrast, in a marriage there is ‘automatic protection’ for the surviving spouse. Further potential issues also arise for cohabitants in the areas of housing, social security, pensions, taxation, parental responsibility, birth registration and parental responsibility. Children themselves have no influence over whether their parents are married or not, so it seems harsh to deprive some of financial support following a parent’s death based on their parents’ marital status.
Owens v Owens
The Supreme Court’s decision in Owens v Owens (in which the wife was not granted a divorce despite the unhappy marriage, because she could not prove that her husband was at fault), showcased the hardship of the law and gained support from campaign groups as well as the media, ultimately leading the government to commit to reforming the law on divorce. Perhaps if there was a similar case showing ‘the hardships of the laws for cohabitating couples as it is at the moment, that may provide the sort of foil needed to build the campaign around it. This has led some commentators to suggest that if unmarried opposite-sex couples were allowed to enter civil partnerships rather than marriages then it might encourage them to do so, meaning they would gain the extra protections and rights that they need.
Although there have been recent reforms for civil partnerships, which was highlighted by the Supreme Court decision in Steinfeld and Keidan v Secretary of State for International Development, which was behind the government’s decision to extend civil partnerships to heterosexuals couples, this is still not a substitute for a lack of cohabitation law reform and hopefully cases like these will be used highlight and raise awareness about the lack of rights that cohabiting couples have.
The legal treatment of cohabitees is deeply riddled with inconsistencies. There is recognition of the fact that there are cohabiting relationships that give rise to needs and responsibilities that must be met in the event of death, but they are not replicated in the event of a relationship breakdown. Two recent Supreme Court judgments have shown UK cohabitation law to be in breach of the European Convention on Human Rights.
In Siobhan McLaughlin for Judicial Review (Northern Ireland), the UK’s highest court ruled that unmarried couples should have the same right as married people and civil partners to claim for state benefits such as bereavement payment and widowed parent’s allowance. In Denise Brewster for Judicial Review (Northern Ireland), it was held that Ms Brewster was entitled to her late long-term partner’s occupational pension despite the fact she had not been nominated to receive one. Although these are positive decisions, they are also case-specific and there would have to be a legislative change to make them apply to everybody. Until there is legal reform cohabitants need to take a proactive approach to protect themselves. A cohabitation agreement setting out the ownership of assets and detailing what should happen if the relationship ends as well as consideration of property ownership by way of a declaration of trust, owning other assets in joint names, making a Will and planning ahead on issues such as pensions, life insurance and lasting powers of attorney should all be seen as essential proactive measures for cohabitants to take.
Ultimately, whether, someone chooses to get married or not is a matter for them and in no way should we suggest that marriage should be entered into lightly or at all of course. It is a serious commitment which entails obligations and responsibilities for both parties, the extent of which are often not fully appreciated by couples who do choose to get married. However, the simple fact that not getting married does not require a conscious decision does not mean that the potential consequences are any less important and indeed, if the relationship breaks down then, for the financially weaker party, the consequences are just as important. We may end up seeing a proportion of cohabitees who are disillusioned with marriage and opt for a civil partnership when it becomes available to heterosexuals, however, we are still going to see many people who are living together, but for whatever reason do not wish to marry and are probably not going to enter into a civil partnership and therefore extending civil partnerships to opposite-sex couples will not and cannot be a substitute for cohabitation law reform. We still need a meaningful reform of the law to provide much needed protection to cohabiting couples when they separate or upon death of one of the partners. As it stands at the moment cohabitees are still going to be left outside the law.