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What Am I Entitled To Following Cohabitation? A Comparison of the Law Either Side of the Border
Date: 11/03/2024 Type: Articles Topic: Private Client | Trusts | Wills and Estates | Inheritance | Next Generation Wealth | Investment and HNWI’s | Tax |Across the UK the composition of families is changing. No longer is marriage the norm; instead, more and more couples are deciding to live together as cohabitants without formalised relationship statuses.
The most recent data from the Office of National Statistics shows that the proportion of adults in England and Wales who are married or in a civil partnership has fallen from 58.4% in 1991 to 46.9% in 2021. Similarly, 2021 was the first year that over half of all births in England and Wales were outside marriage (51.3%). Cohabitation is now the fastest growing family type and it is anticipated that this trend will continue.
Despite these statistics, many couples do not realise that there is no such thing as a “common law marriage” in England and that cohabitation does not confer the same legal status as marriage or civil partnership. Similarly, many are not aware that the legal rights of cohabitants are starkly different depending on whether that couple lives in Scotland, or in England and Wales.
This article reflects on cohabitation in both jurisdictions and considers how far couples are protected on either side of the border in the event of a dispute on relationship breakdown.
Cohabitation rights in England and Wales
Although cohabiting couples do have legal protection in some areas (for example the law relating to protection from domestic abuse), cohabitation itself does not give rise to any financial claims on separation in England and Wales. This is the case regardless of how long that couple has lived together.
Upon separation, the courts possess no power to award financial provision, adjust property rights or award ongoing maintenance to a former cohabitant in the same way that they are able to do so under the law when the parties are married. Instead, cohabitants are forced to rely on property and trust law in order to try and bring a claim however this is not straightforward; the law is complex, the outcome difficult to predict and there are serious cost consequences for unsuccessful claims. Where there are children of the relationship an application can be made under Schedule 1 of the Children Act 1989 seeking a financial award for the benefit of those children, however this regime can be unpredictable, limited in its remedy and unavailable once the children reach adulthood.
There have long been calls for the urgent need for reform to keep pace with the ever-changing landscape of relationships and to keep up with other countries such as Canada and Australia. As marriage is no longer the default family type many argue that our laws should be updated to reflect that.
There have been numerous calls for reform, the most recently being the UK Parliament’s Women and Equalities Committee Report, The Rights of Cohabiting Partners. The report considered that the current law relating to cohabitants can be expensive, unclear, complicated and unfair. It recommended reform of the law “to better protect cohabiting couples and their children from financial hardship in the event of separation.” Disappointingly, the government responded in November 2022 and largely rejected all recommendations on the basis that focus should remain on improving the law of marriage and divorce before changes to the law of cohabitation should be considered. In April 2023 the government again confirmed, when advising that it would be asking the Law Commission to consider finances on divorce by way of a comparative study of other jurisdictions, that this review would not encompass cohabitation law.
It is disappointing that this issue is not higher on the government’s agenda. When it does however come to be looked at it will undoubtedly be helpful to look at the experience of other jurisdictions, such as our neighbours in Scotland, where legal protection for cohabitants has been recognised for some time.
Cohabitation rights in Scotland
In contrast to England and Wales, Scotland does have a legal regime protecting cohabitants which is set out in the Family Law (Scotland) Act 2006. In order to qualify the couple must have been living together as if they were husband and wife or civil partners. There is not however any qualifying length of time and the ability to bring a claim will depend on the circumstances of each case.
In order to make a financial claim, the cohabitant must show that they have suffered an economic disadvantage as a result of the relationship or that the other cohabitant has benefitted from an economic advantage. The court must also consider the extent to which any economic disadvantage is offset by the economic advantage enjoyed by the cohabitant during the relationship, and vice versa. If, for example, one cohabitant has benefitted financially from the cohabitation but has had to give up their career in order to care for a child of the relationship, this may offset any economic advantage. The courts will seek to achieve fairness insofar as possible, and will carry out a general balancing exercise to assess the economic impact of the relationship on the parties.
If an overall economic disadvantage can be shown, the court has the power to award a lump sum payment to compensate for this (which can be paid as either one lump sum or in instalments). In contrast to financial claims on divorce, the courts in Scotland do not have the power to award cohabitants pension sharing orders, property transfer orders or ongoing maintenance.
There is also a very strict time limit for bringing a claim under the cohabitation legislation in Scotland. It must be raised and served on the other cohabitant no later than 12 months from the date of separation.
Despite there being protection for cohabitants in Scotland, which is undoubtedly a step ahead of England and Wales, the law in Scotland has been criticised for being outdated, unclear and failing to provide the remedies that separating cohabitants need and want. There are therefore calls for reform and the Scottish Law Commission published a report in November 2022 setting out its recommendations. It remains to be seen whether, and to what extent, the Scottish Parliament will support this proposed reform to cohabitation law.
Conclusion
It is fair to say that there has been long-standing resistance from successive governments in England and Wales to tackle the urgently needed reform. As yet, they have refused to properly consider the recommendations for reform and consider what might be learned from our neighbours across the border. The position is similar in Scotland, although arguably the need for reform is less pressing given that cohabitants do at least have some, albeit limited, protection.
Until law reform takes place in both jurisdictions, there must be a focus on increasing awareness of the legal position for cohabitants so that couples are aware of what they may (or may not) be entitled to in the event of a dispute on separation.
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