Married couples and civil partners are afforded a number of legal rights and obligations, but the situation for cohabiting, unmarried couples is far less secure. As the government prepares to bring the law on civil partnership in line with that of marriage, millions of cohabiting couples in England and Wales will continue to exist in a sort of legal limbo – a curious void in which the common law has not recognised common-law marriage since 1753.
More than four million people in England and Wales are in cohabiting relationships. As with married couples, cohabiting partners sometimes choose to split. In some cases, separation is involuntary, as when a partner dies or goes missing.
The personal, proprietary and financial associations forged by cohabiting couples can be as complex and entrenched as those of husband-and-wife relationships. This is why family law solicitors are often asked to manage cases involving cohabiting men or women whose partners have left them for one reason or another.
The problem is that whereas marriage is a legal contract of sorts, cohabitation is less clearly defined. At what point – if any – should the law recognise an unmarried relationship as belonging to the same class as marriage? How long should cohabiting couples be together before they are granted rights and duties at common law? What should happen when cohabiting families split up?
The law of England and Wales does not confer on cohabiting couples any particular rights or obligations. If a cohabiting relationship ends, neither partner would be required by law to pay maintenance to the other (child maintenance excepted, as this is not for the benefit of the former partner). Savings and personal possessions would not be divided equally in the event of a split unless a clear agreement had been made beforehand (preferably in writing to ensure an automatic right), while financial associations would be at the mercy of finance laws (credit, contract, etc.).
It is hoped that while tinkering with laws on civil partnership, government ministers will realise that cohabiting couples need better legal rights. In the meantime, the cohabiting must rely on common-law developments. One area of the law that has undergone change in recent times relates to living arrangements.
When cohabiting couples split, it is customary for either partner to leave the shared property. If the couple had been renting a home under a joint tenancy, both parties would have an equal right to continue living in the property. If the tenancy is in the name of just one person, only that person would have an automatic right to continue living there.
The law on property ownership is somewhat different. Indeed, one recent development has attempted – either expressly or implicitly – to separate the equitable rights of cohabiting couples from land law. This is not necessarily desirable or logical, but the effect is likely to prove fairer for couples who enjoy few other rights.
The development arose from the verdict of the Supreme Court in Jones and Kernott (2011), which overturned a decision by the Court of Appeal to award Leonard Kernott a 50-per-cent share in a property that he had shared with his former partner, Patricia Jones, for more than eight years. The Supreme Court restored the original ruling to award a 10/90-per-cent split in Ms Jones’ favour on the basis that a constructive trust had been formed. Ms Jones was considered to have the highest quantum of beneficial interest in the property because she had paid the mortgage on it for thirteen years, rebutting the presumption of joint tenancy.