A dangerous assumption

For the first time in history, Downing Street is occupied by cohabitees. Boris Johnson is to live there with his partner Carrie Symonds. While this made the headlines for obvious reasons, it simply reflects the reality all over Britain, with national statistics showing the number of couples deliberately opting out of marriage is continuing to rise. With more than three million unmarried couples choosing to live together, cohabitation remains the fastest growing and the second largest family type in the UK. Note ‘remains’: this has been the case for a number of years now, with the number of cohabiting couples increasing by a significant 25.8 per cent in the last decade. However, the debate around the issue of whether there should be more legal protection for the parties to a cohabiting relationship still rumbles on, with no change anywhere near the horizon. Worryingly, the myth of common law marriage still prevails in our society, with an alarming number of people incorrectly believing that if they’ve been living together for a certain period of time, they automatically acquire the same legal protection as married couples.

The Office for National Statistics (ONS) recently reported that this popular misconception was just as prevalent among same-sex cohabiting couples (who are also growing in number) with more than 30 per cent under the impression that if their cohabitee partner were to die, or the relationship were to break down, the law would operate in a similar way as if they had been married. This is not the case. On divorce, spouses have an automatic right to claim a financial settlement from their partner should they need or desire to do so. Depending on the specific circumstances, this could include claims for maintenance, a share of assets (including pensions) or lump sum payments. For unmarried couples, the position is very different. Put simply, each party retains what they own and joint assets are split in accordance with the way in which they are legally held. In some instances, a former cohabitee may be able to attempt to claim against another’s property, but these cases are hard to prove and costly to litigate. Although in many cases, it is sensible to have a well drafted cohabitation agreement in place, there are no absolute guarantees in terms of their legal enforceability. Disputes between cohabitees on relationship breakdown can be extremely acrimonious and expensive, and the common misconceptions which pervade this area of the law can have devastating consequences for the individuals involved, particularly if they also have children.

Although some will undoubtedly disagree, the law is reasonably good at keeping up (or at least trying to) with the breakneck speed of technological advances and the previously unchartered legal landscape they create. Why then are the legislators seemingly so very sluggish, or even worse reluctant, when it comes to keeping up with changes in society? The ongoing debate around ‘no fault’ divorce is another example of this disconnect between the law and reality, caused in part by the overly paternalistic approach legislators seem to take when it comes to ‘family issues’. The concept of no fault divorce has been slow to fruition, largely because legislators have been fearful it might encourage divorce.

Similarly, cohabitation agreements were historically void on the basis of public policy as they were deemed to encourage sexual relations outside marriage. It seems the law is often more concerned with challenging old-fashioned yet entrenched views than it is with ensuring it reflects the reality of shifting societal trends. It is important for the law to carefully balance its paternalistic tendencies with its protective duty. Perhaps the question is not why the legislators haven’t addressed the gap in the law, but whether they should. My view is that it is education and not legislation that is key to addressing the issues surrounding this new family format. Cohabiting couples need to be aware of the legal framework surrounding their chosen family format and the myth of common law marriage needs to be dispelled. The greatest problem when it comes to cohabitation is arguably not the absence of protection, it is the presence of assumption. And we all know what they say about assumptions. Does Carrie?

Pippa Allsop is an associate at Michelmores michelmores.com