Riyad Islam
Family & Divorce Law
The risks and benefits in law reform for cohabiting couples
There is a common misconception that cohabiting partners have the same rights as a married couple, particularly where it is a long relationship, or the couple has children from the relationship.
This is however not supported by the current law. For some time now family law campaigners have been pushing for a change in law as modern-day society moves away from the idea of marriage and more couples instead choosing to cohabitate. This puts the more financially vulnerable partner at risk as the law currently does not offer any ongoing financial protection on the breakdown of a relationship, but on the flip side of this, the couple may have chosen not to marry (or enter a civil partnership) for the express intention that they do not want to legally regulate their relationship and offer that protection to the other partner.
It is important to understand, it is not just women who are affected by cohabitation laws. Whilst it is generally women who are at a disadvantage, there are instances where men are in a financially vulnerable position, or in same-sex relationships it could be either person.
The current government has pledged to strengthen the rights and protections to women in cohabiting couples (albeit one would argue this refers to the vulnerable partner and not just women), but what are the risks.
| Risks | Benefits |
| Some couples consciously choose not to marry or enter a civil partnership as they do not want to create that financial connection and want to retain their respective financial autonomy. Law reforms which provide rights and protections to the financially vulnerable party may put such relationships at risk of conflict in the future if they separate
|
Many people get caught out by the current laws as they assume they have the same rights as a spouse in divorce proceedings, when in fact there is not such thing as a ‘common law wife’. |
| Couples may be less inclined to have long term relationships for fear of creating a legal obligation to the other
|
Those couples who live as a married couple without being married may be compensated for their contributions to the family which they may not have otherwise been compensated for. For example, if one partner does not work to stay at home and care for the children, and the other is out working, the parent at home should be compensated for not being able to work and contribute to a pension.
|
| How long will a couple have to cohabit for before they have rights and protection. There are instances when couples have children before they are living together, does the arrival of a child automatically give additional rights and protection.
|
In situations where a family home is owned by one partner but there is an intention for this to be a joint property but the position has not be regularised, law reforms could protect these individuals. Currently, they would have to rely on the Trust of Land and Appointment of Trustees Act 1996 to show why they have an interest. This is a long and costly process, and if this person is already financially vulnerable, they may not be able to afford pursuing this.
|
| What if the couple are a on again off again couple who have lived with each other at various points with gaps.
|
For couples who have had a religious marriage ceremony but are not legally married in the UK, this would offer them some protection against the fact they cannot apply for a divorce under the UK Law. It could be argued that by having had a religious marriage ceremony, there is an intention to give and receive the same rights as a couple who has a legally recognised marriage.
|
Related insights
Janeet Jawanda
Samantha Hamilton
Jas Burrha, Solicitor in the Family team, said:
“There does need to be some reform in the current law, particularly where a couple has married either religiously or in a country which is not recognised as legally binding in the UK as there is a clear intention for the couple to create those rights and protections. A common example of this is Muslim couples who have only had a Nikkah or Sikh Couples who were married at a Gurdwara but have not had a civil ceremony.
There are also those couples who think that by having been in a cohabiting relationship for 20 years they have rights if and when a relationship ends but they do not. However, we cannot ignore those couples who have expressly chosen not to marry or enter a civil partnership to avoid this. I think people need to be educated on the law so couples are aware of the differences. By giving cohabiting couples the same rights as married couples automatically, defeats the purpose of couples not marrying. Where a couple do want to create these rights and protections, these should be formally recorded with both parties receiving independent legal advice in a legally binding document.”