Recent data from the Office for National Statistics (2017) shows that there are around 19 million families in the UK, with 12.9 million involving either a civil partnership or marriage. Although cohabiting couples are the minority (3.3 million), it is known that the number of cohabiting couple families are growing fast. Emily Knipe, for the Office for National Statistics, found that same-sex couples were most likely to be in cohabiting couple families, and opposite-sex couples more likely to be married, which is thought to be due to same-sex marriage being a ‘relatively new legal union status’.
For those who are married and are divorcing due to irretrievable breakdown of the relationship, the starting point for division of assets is that an equal share should be given, and then adjusted accordingly. This will be based upon each party’s contributions towards, and in, the matrimonial home, both before and after the relationship breakdown. The point to make here is that the contributions do not have to be monetary. Many cases have shown that there is no discrimination to be made between the contributions of the money-earner and the child-carer or home-maker, as demonstrated in McFarlane v McFarlane (2006). The present position for cohabitees is different. Here, the person with the financial interest, e.g. whoever paid the initial purchase price for the house, gets the property. The financial contributions of the other cohabitee then have to be demonstrated in order for them to be given such an interest in a share of the home.
This position is awkward, and does not stand well in the eyes of justice, as I will demonstrate. Imagine two identical couples, together for twenty years, the mother staying at home to bring up the children (contributing to the family in a non-financial way) and with the father paying for the household. The only difference between the two is that one of them is married, and the other is not. For the first of the two couples who are married, upon divorce it will be assumed that they are given an equal share of the property. Whilst in the latter relationship involving cohabitee’s, the mother will be left with very little, as has been demonstrated in several cases. This uncomfortable reality means that cases where women have been given a share without a financial interest are few and far between, showing historical injustices within society as a whole, with a failure by the courts to recognise that contributions to family life may not just be financial.
This is not to say that there is no form of support for cohabiting couples upon breakdown. However, this does not appear in the form of a right, but more so a proprietary interest. One example can be shown through constructive trusts; where the couple has a common intention (expressed or implied) towards the home and the person claiming has relied on the intention to their detriment. In this case, financial and non-financial contributions can be made. Unfortunately, this option may be considered one of the more flexible choices (as opposed to resulting trusts), but it is still narrowly applied and hard to prove that a common intention was shown.
There remains a striking disadvantage for cohabiting couples upon the breakdown of their relationship compared to those who are married or in a civil partnership. Unfortunately a lack of knowledge causes many cohabiting couples to assume they have the same rights as those who are married or in a civil partnership. A University of Bristol research study, ‘Dealing with Property Issues on Cohabitation Breakdown’ found that ‘very few participants had investigated or knew anything’ about their legal positions. Considering the numbers of cohabiting couples and the trend for this to increase, this issue will only grow larger.
A number of reforms have been proposed. The first being the removal of the principle that marriage gives you proprietary rights. Instead, giving all cohabiting and married couples a blanket protection of rights regardless of their marriage status, would be beneficial. As well as preventing the confusion many cohabitees feel, it would also mean they would be protected in the event of a relationship breakdown. However, there is considerable debate on this stance as many decide to cohabite because they do not wish to be tied to such formalities associated with marriage. The informed couple who is aware of the rights given upon marriage, and who choose not to have such rights, is inadvertently given some of the rights, and will have to comply with them, regardless of consent.
Another option, on the back of this is an opt-in system, whereby you can choose to gain such rights by opting in to a system that gives you the rights of marriage, without actually having to perform the legal ceremony. This would work to an extent, but couples who remain unaware of the existence of such a system if it was introduced, could continue to assume they have existing common law rights, and thus would not benefit upon relationship breakdown. As a result, an opt-out system could be more effective, whereby cohabitees are automatically given marriage rights (in terms of property), and the informed couple, who is aware of the rights and chooses not to have them, can opt out of the system in order to get into such a positon. This would be a more effective system as a couple who are aware of the rights that would be imposed (the informed couple), can choose not to have such a position, whilst the uninformed couple will benefit from the rights automatically.
As it stands, within society there is a considerable lack of knowledge surrounding the property rights associated with cohabitation. Whilst there is admittedly no existing 'one size fits all' solution that addresses the fundamental lack of rights awarded to cohabiting couples, more attempts can be made to educate people and rectify the incorrect assumptions that are often made.