Unmarried Couples: Entering a Modern Era

Whilst marriage is seen by many as a ceremonial event, which symbolises the love and lifetime commitment between two people and which signals the start of a lifelong committed relationship, it is also viewed as a coming together of the parties’ finances, and an acceptance that what one has, the other will share.

Marriage can afford financial security to those who are financially vulnerable but where there is a disparity of wealth that security can be lost on divorce.  However, it can be said that marriage creates certain financial rights of claim against each other’s assets and income, whereas the same cannot be said for unmarried couples.

Even where two people have been in an enduring relationship for many years, have lived together, and have children together, if they are unmarried they have no automatic right of claim against the other’s finances, should that relationship break down. The lack of rights of unmarried couples has long been debated amongst professionals and politicians, and arguably the law is outdated.

The concept of marriage is steeped in tradition, and is archaic in many ways, especially when you consider the vows which are exchanged. As decades pass, we are seeing couples marry less or later in life. To many their way of living does not encompass marriage. To give perspective, there were 3.6 million cohabiting couples last year compared to 1.5 million in 1996. Only now, are we seeing Parliament considering cohabitee rights, rights which were proposed by the Law Commission 15 years ago.

You may have heard of the concept of the “common law wife”, which many believe gives unmarried couples the same protection as if they were married. But this is not the case. Merely living together does not create rights which many discover to their cost after the end of a long relationship. In fact, cohabitees have no rights merely by virtue of their living with their partner, even after what may be a very long and committed relationship and it can be very hard to establish legal rights in property owned by the other party.

It may then be thought that the Government should do something to ensure that there are legal protections for those who wish to have a family, but do not wish to marry?

To improve the rights of cohabiting partners, the Government is again being urged to consider an opt-out cohabitation scheme which was first put by the Law Commission in a report in 2007 on the financial consequences of relationship breakdown.

The scheme is designed to protect economically vulnerable people, to maintain a reasonable standard of living and ensure a more equal and fairer distribution of assets following the breakdown of a relationship. It would apply to couples who live together, have a child, or have lived together for a certain number of years.

The Committee suggested that the Government should commit to publishing draft legislation to be debated in the 2023-2024 parliamentary session.

Resolution are an organisation of family lawyers who follow a code of conduct designed to put children and families first and encourage the resolution of family disputes in a constructive and non-confrontational manner. Resolution believes that the Government had a moral obligation to bring the ‘legal limbo’ for cohabiting couples to an end. Graeme Fraser, chair of Resolution’s Cohabitation Committee, has said:

‘The lack of rights for cohabiting couples has seen millions of people – often women – at significant financial risk if their relationship ends or their partner passes away. Now is the time for ministers to finally grasp the nettle and reform laws to ensure cohabiting families have better legal protection.
‘Cohabiting families are the fastest growing family type in England and Wales and yet lack even the most basic legal protections. Ministers have a moral obligation to act now to protect them – otherwise, left unreformed, the current law will consign even more families to misery and dire financial hardship.’

The Government have said that they will consider the proposal and will respond in due course. It is likely that this is only the start, of what may be a new era for the law in relation to unmarried couples.

For further information or guidance, please contact a member of our Family Team.

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