According to the Office of National Statistics this week, the number of cohabiting couples has more than doubled in the last 20 years, from 1.5m in 1996 to 3.3m in 2016. Cohabiting couple families now make up 17% of all families in the UK. What are the implications of this?
The fundamental difference between marriage and cohabitation is that when you get married, you know that there is a legal framework around what would happen if you were to split up: the Matrimonial Causes Act 1973 kicks in to regulate your divorce and any financial arrangements that need to be made in relation to it, and children are the first consideration in any financial outcome. Where children are concerned, a father automatically has parental responsibility for a child born to his wife during a marriage, whereas fathers not married to the mother of their children need to be named on the birth certificate or a parental responsibility agreement/order. (The situation is more complicated for same-sex couples.)
For cohabiting adults whether opposite-sex or same-sex, there is no concept of ‘common law marriage’ or anything else that means assets or incomes have to be shared out once the marriage is over. Generally, you could just walk away. There is no specific applicable law, which means a rag-tag bundle of property, trust and common law might be relevant depending on the circumstances. If you own property together, there are strict rules for working out who is entitled to what; if one of you owns property that the other has contributed to in some way, the law regarding whether a claim for a share in it is allowed can be very complex. Housing provision for any children can sometimes be achieved by using a separate piece of law, but it only makes provision for a child’s carer for the duration of childhood. This legislation is unfortunately rarely used.
The one thing that married and cohabiting couples both have in common is access to the child maintenance service for the assessment and collection of child maintenance, where necessary.
There is plenty of anecdotal evidence about the effects of the lack of legal framework covering the separation of cohabiting couples. Consider this: a traditional family setup where there’s a mum, a dad and two primary school age children. Dad owned the home before he got together with mum; mum moved in. Soon the children came along and mum gave up work to look after them, while dad carried on working long hours and earning a good income. Unfortunately the parents split up. If mum and dad are married, mum might expect a good share of the equity in the house to enable her to rehouse with the children, a share in her husband’s pension perhaps to help her out in old age, maintenance at least until she can retrain to go back to work and possibly for longer, and child maintenance for the children. If mum and dad didn’t get married, mum might rarely get some money for housing for herself and the children but it would pass back to dad when the children became adults, leaving her potentially homeless; she would have absolutely no access to maintenance in her own right despite having given up her job to raise the children; she would still get child maintenance. ‘Just a piece of paper’ can make a big difference if you are financially vulnerable at the end of a relationship. When 47% of young adults still think that there is no legal difference between marrying someone and living with them, it’s easy to see that this misconception could be a big problem.
According to The Marriage Foundation, marriage is declining across Europe, particularly among lower socio-economic classes. They believe this is cause for concern and action in social policy, as they see it as a determinative factor for children’s life chances. They believe that cohabiting relationships are inherently less stable than married relationships as the foundation of family life, and that parental separation harms children, therefore children have better life chances if their parents are married than if they cohabit. The answer to this, they believe, is the promotion of marriage by government as the family form of policy choice.
Resolution, the association of family lawyers of which we are all members, takes a somewhat more pragmatic view of how to help children and families, and suggests that the government should be prioritising cohabitation law reform to protect vulnerable parents and children after relationship breakdown. They say,
“Resolution proposes that cohabitants meeting eligibility criteria indicating a committed relationship would have a right to apply for certain financial orders if they separate. This right would be automatic unless the couple chooses to ‘opt out’.
The court would be able to make the same types of orders as they do currently on divorce, but on a very different and more limited basis.
Awards might include payments for child care costs to enable a primary carer parent to work. “
In the meantime the best way for cohabiting couples to protect themselves from the vagaries of the law is to have an agreement in place about what financial arrangements should be made in the event of separation. If you’ve got any questions about the law applying to cohabiting couples or any other family law issue, please give us a call on 01223 443333 and make an appointment to talk to Adam, Sue, Tricia, Gail or Simon.