Living in Miserable Sin

It has been a depressing few weeks for cohabiting couples, at least as far as official reports and surveys are concerned.

A fortnight ago the Marriage Foundation, an organisation claiming to be “a national champion for marriage” and boasting many judges in its ranks of supporters (see here) published a report which claimed that cohabitation fails to offer a stable home for children, and that the societal move away from marriage is leading to family breakdown. The study, which you can read here, claims that in Britain today 45% of young teenagers are no longer living with both their parents. It also predicts that of the 47% of children born to unmarried parents today, only 11% will reach the age of 16 with their parents still together and unmarried -the majority of the other 89% will see their parents either marry or split up. Those who stay together for the duration outside marriage, it says, are a small minority. In contrast, the report says that of those parents who stay together until their children reach 16, 93% are married.

We are no great fans of the Marriage Foundation, which aims to influence government policy in the direction of supporting marriage as the family form of choice, and has a much more narrow view of what makes a “successful” family than we do. We suspect that there are many different ways of reading these survey results (“lies, damn lies and statistics” etc), but the media, led by the Marriage Foundation, have portrayed them as fairly damning of those who chose to operate their relationships outside the marital regime. For us, successful families come in all shapes and sizes. We believe everyone should be able to choose to marry, live together or form a partnerships in whatever form they wish – the key thing is to know the rights and responsibilities that attach to your choice so you’re not caught out. (More of this later.)

The second report comes from the Office for National Statistics and trumpets the fact that people who are married or in civil partnerships are happier, or rather rate their “life satisfaction” more highly than those who cohabit or are single. You can read the report here. As well as scoring lower on “life satisfaction” cohabiting couples apparently rate their activities as less worthwhile than married couples, and also suffer from greater anxiety. The presence of children in a household makes people in both groups feel their activities are more worthwhile, when compared to people who do not live with children. (The Daily Mail covered the report, complete with many colourful graphs.)

So where does all this leave the poor anxious, unhappy cohabitants who are all about to split up (if we are to believe these reports)?

Well, we’ve written before about how courts look at the assets and property of cohabiting couples who separate, and we have a handy factsheet which can be downloaded here. In summary, there are no rights to claim maintenance from a cohabiting partner and there is no general power to redistribute assets in the name of one party to the other if the couple has not been married. There are rights of maintenance attaching to children of course, just as if the parties were married – the child support regime takes care of that, with a top-up ability for the courts where necessary and/or appropriate. In terms of the ownership of property if there is a dispute about who owns what, the legal starting point is to look at the paperwork when property was purchased – is there an express intention as to what the parties intended with regards to ownership? If not (and even potentially if there is), then the courts may be willing to infer intentions as to property ownership from the factual circumstances. This is particularly relevant when the conduct and behaviour of the people involved suggests that their intentions were not the same as those expressed, or (more likely) not expressed, at purchase. Nevertheless, the courts are very cautious and it is often an uphill struggle to prove the reality is different from how it would seem to be.

Where the property’s legal owner has been careful to keep all finances separate and has not demonstrated anything which could be taken as an acceptance that the non-owner should have a share, then that asset should be safe. A couple of recent cases have confirmed this (see here and here the latter of which is about to go to the Court of Appeal). In granting permission to appeal in the second case, Lord Justice Toulson stated that the law for cohabitants remains potentially unfair. We agree; it is regrettable that despite recommendations for reform from the Law Commission back in 2007 there is no political will to improve the legislative lot of cohabitants who remain squarely outside the protective matrimonial jurisdiction, no matter what personal detriment they may have suffered as a consequence of a cohabiting relationship.

Perhaps that is why they are so unhappy, as the reports tell us. Joking aside, the law affecting the property of cohabitants can be complex, and if you have any concerns about how you might be affected, please give Gail, Adam, Sue or Simon a call on 01223 443333.

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