Inequality in the Law Relating to Cohabitation and How to Change It

Cohabitation is widespread and is becoming ever more common. It is actually the fastest growing family type in UK. In the last 15 years, number of people who are choosing to live together without being married or in a civil partnership has actually doubled. The 2001 Census recorded that there were over two million cohabitating couples in England and Wales, an increase of 67 per cent in just ten years. The number of such households where one or more children are present has doubled in the same period. The Government Actuary’s Department predict that by 2031 there will be 3.8 million cohabiting couples. In some respects the law relating to cohabitation has struggled to keep pace with such changing times. As a result, parts of the legal framework are complex and piecemeal.

There is huge complication in discussing unmarried couples because there are numerous forms of cohabitation. The term “cohabiting couples” is known as a couple who have deliberately decided to avoid marriage but wish to stay together in a permanent stable relationship. Lord Hoffman in Re P stated:‘ statistics show that married couples, who have accepted a legal commitment to each other, tend to have more stable relationships than unmarried couple, whose relationship may vary from quasi-marital to ephemeral. Baroness Hale in the same case stated: “some unmarried relationships are much more stable than some marriages, and vice versa. The law cannot force any couple, married or unmarried, to stay together. More important it makes a great legal difference ’to their relationship. Marriage brings with it legal rights and obligations between the couple which unmarried couples do not have'.

About 60% of people in the UK wrongly believe that there is something called common law marriage. The idea is to believe that living with someone for a certain amount of time will get the same legal rights as married or in a civil relationship. Unfortunately, this is not the case. There is no automatic entitlement to shares in property or financial support from the X-Partner if the cohabitating relationship breaks down. Cohabitants could appeal under section 14 of the Trusts of Land and Trustees Act 1996 for the court to decide whether or not a party has an interest in a property. A recent case just reaffirm the fact that, if a property is under the parties name and there is no agreement as how the property should be otherwise divided then there is no presumption that it should be shared equally, regardless of how long the parties have been living together.

Baroness Hale, writing extra-judicially, has argued that the law needs to protect cohabitants from inequality. She writes: “Intimate domestic relationships frequently bring with them inequalities, especially if there are children. They comprise the parties respective economic positions, often irreparably. This inequality is sometimes compounded by domestic ill- treatment. These detriments cannot be predicted in advance, so there should be remedies that cater for the needs of the situation when it arises. They arise from the very nature of intimate relationships, so it is the relationship rather than the status that should matter”.

Cohabitation argument could only be ascertained if rules of trusts or proprietary estoppel are applied. Other than that, cohabiting couples, can enter binding cohabitation contracts which will determine what will happen to their property on separation. However, care must be taken of such contracts. In Sutton v Mischon de Reya Charles J held that such a contract amounted to, in effect, a contract for sexual services. He saw a key distinction between a contract for sexual relations outside marriage which was not enforceable and a contract between people who are cohabiting in a relationship which involves sexual relations. Charles J, surprisingly turn of phrase, stated that ‘ even a moron in a hurry could tell that the contract in this case fell into the former category and so was not enforceable.

It is arguable that the courts are actually resolving the property conflicts with unmarried couples as in the same approach they would with married couples by hearing the case under Matrimonial Causes Act 1973. Various of equitable doctrines have been used as constructive trusts which in consequence have given the courts an extensive discretion in deciding the apt share of the equitable interest. Furthermore the constructive trust that is governed by the law can be used as in the judgement of the HOL in Lloyds Bank v Rosset, eventhough this has been developed by Stack v Dowden and Abbott v Abbott.

In the 2007 report, the two main criticisms were, firstly, that constructive trust law have been construe as complex, uncertain and has the potential to give unfair outcomes. accommodate contingent intentions and secondly, due to the restrictive nature of constructive trusts, the court is incapable to substitute its views of what is fair, but must remain to the intentions of the parties. Nevertheless, one of the main aims of legislation to regulate financial provision for cohabitants on separation is to protect the vulnerable that are often unaware of the lack of protection.

The Law Commissions Consultation Report 2007, Cohabitation: The Financial Consequences of Relationship Breakdown, proposes reform to the law. Their proposal will give cohabitants some financial remedies on separation, but these will be less extensive than available to married couples. The government in 2011 said it had no plans to implement the proposals within the current Parliament. In 2014 a private member’s Bill (the Cohabitation Rights Bill 2014) was presented to Parliament to give effect to these proposals, but without Government support it is unlikely to be passed.

In the area of law, when it comes to discovering beneficial interest rights and on what proportion each cohabitant entitled to, there is no statutory rules governs dissolution of relationship. Unlike, married and civil partners who are governed under s24 of the Matrimonial Causes Act (MCA) 1973 on marriage breakdown and to civil partners under s 72 and Schedule 5 of the Civil Partnership Act (CPA) 2004 on dissolution of their partnership.

The aim of the current law is to reform cohabitation law and give cohabitees the same right as married couples or in civil partnerships. However, there have been quite a lot of attempts to reform the law on cohabitation and none of them have been successful so far. There are protections available to cohabitees but unfortunately a lot of people are not aware of what are their rights and responsibilities are. It is sensible to protect the position of a cohabitee and the most easy way of doing this is by entering into cohabitation contracts. There are now a modest growth estimate in the provision of cohabitation contracts, which can bring for the parties whatever terms they wish to administer their relationship, whether they are cohabiting happily or when there is a relationship break downs. They have a similar role to play for unmarried parties as separation and maintenance agreements that provide a modus vivendi for those who know that they can no longer live together.

Cohabitation agreement covers shares in property, financial arrangement during relationships, on who pays ‘what’ and ‘when’ and they also cover how property and asset should be divided in the unfortunate event of a relationship breakdown.

Besides that, a former cohabitant could also appeal for an order on behalf of their children under Schedule 1 Children Act 1989 for financial provision. Nevertheless, this only provides proportionately short term relief and a unprotected former cohabitant may become homeless when children reach the age of 18. Moreover, the capital provisions of schedule 1 are normally only of use in bigger money cases.

The sustaining cohabitant of a partner who dies without leaving a will, has no automatic right under the intestacy rules to inherit ant part of his/her partners estate. A sustaining cohabitant would able to make a claim under the Inheritance 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.

Problems also arise for cohabitants in the place of housing, social security, pensions, taxation, parental responsibility, birth registration and parental responsibility.

To summarize, cohabitants are unaware that there are rights adhered to “Common Law Marriages” and are committed to this detriment. The law currently protects the capable cohabitants by placing the onus on the incapable party to do something about their position. 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 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.

07 July 2022
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