Cohabitation Awareness Week #abetterway

The family solicitors’ body Resolution is running its annual campaign this week. In past years this has focused on alternatives to court, such as collaborative law, mediation or arbitration. This year, they have set their sights on the hopelessly inadequate laws that apply in relation to unmarried couples.

There are apparently now almost 7 million couples in England and Wales who live together without marrying. Not a single one of them is a common law husband or wife. There is no such thing as common law marriage (a claim that has led to heated and somewhat academic arguments among barristers on Twitter. Another way of putting it is that common law marriages are not recognised by the English courts.)

Many people who live together assume that once they cohabit, they gain the same or similar rights and entitlements as married couples. Therefore, they assume, if the relationship breaks down and they split up, they expect the court to divvy up the assets between them in such a way as is fair and meets their needs, just like a court does in a divorce.

The court may do no such thing. The law that applies to unmarried couples is totally different to that which applies to divorcing couples. The court has far less discretion about how to divide assets between an unmarried couple in such a way that achieves fairness. Instead, it has to engage in a complicated exercise where it considers what the parties intended when a property was purchased and any other later different shared intention. There is usually very little documentary evidence, if any, and many people simply cannot remember what was agreed or intended at the time. If they can remember anything, odds are that recollections will differ. The court then has to infer or impute an intention from the parties’ conduct in the past.

This can frequently result in deeply unfair outcomes. I have seen people who lived with a partner for years, man and wife save for the absent wedding ring, and who find that they are entitled to absolutely nothing when they separate because the house is held in the sole name of their ex-partner. Even if the former cohabitant can satisfy the court that it was always intended that they be joint owners, it will cost a fortune in legal fees to get their fair share. (There is a rather witty comedy sketch about this here which sums it up brilliantly.) The chances of getting nothing are much higher than they are in a divorce; very few divorcees walk away from a marriage completely empty-handed after all the assets have been given to their ex-spouse.

Such nasty surprises can be avoided by entering into a cohabitation agreement (aka a Living Together Agreement) so it is clear from the outset what is intended, but hardly anyone does this. Fred and Vera’s story below illustrates this well.

The court has limited powers to make financial provision for children of an unmarried relationship, but this is for the children, not for the parents. Therefore, while the court can order that a mother be allowed to remain living in a house owned by the father, once the children have left school, the house is returned to the father and the mother is left without a home or assets. This is a hopeless remedy and often completely impractical in any event.

Politicians, especially on the right, show little enthusiasm for reforming the cohabitation laws. They often argue that reform would weaken the institution of marriage. My view is that it is pointless expecting that the law should shape society; it also needs to reflect modern society. There needs to be a better way.

For more information about disputes between unmarried couples, click here.

If you would like to arrange a consultation click here or call Armstrong Family Law on 01206 848426.

29 November 2017

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