More couples than even are living together without getting married, whether never planning to get married or living together for a while prior to marriage. There are more than four million cohabiting couples in the UK now, with nearly half of children being born outside of marriage.
While a couple living together may not be a problem, it can become problematic if they separate. It can be confusing for people as they may not know exactly where they stand. For example, what happens if they own a home together or have children? Many have the wrong idea of family law in these cases, while others don't consider it when they first move in together. After all, to some, simply living in a house with another person may not seem that bigger deal even if they are a couple. Some assume that cohabiting couples have the same legal rights as a married couple, with the idea of common law marriage, where couples who have lived together long term automatically have the same rights as married couples. This is not the case; the idea of common law marriage in the UK is a myth.
The problem at the moment is that people don't really know where they stand, and many who think they know have the wrong idea. This issue has recently been in the news with the case of Ms Jones and Mr Kernott, who were an unmarried couple living together with their children. They separated and Mr Kernott moved out of the home with Ms Jones and the children continuing to live there, with Ms Jones paying the mortgage. Once the children had grown up Mr Kernott made a claim for the home, assuming he would be entitled to 50%. After many lengthy court battles the Supreme Court has awarded Ms Jones 90% and Mr Kernott just 10%. This could be a significant case in terms of determining entitlements of separating cohabiting couples.
Many legal experts have argued that with so many cohabiting couples the law needs to be changed and simplified. But how? There are many opinions as to what the law should be regarding separating unmarried couple who have lived together. Below are some of these arguments.
It should be balanced to reflect the assets that each person brought into the relationship.
This would be simple in many cases, as if one person owned the home the couple lived in, they would retain ownership after. Where both work, it would mean each keeping their own earnings. The problem would come where circumstances are different when they separate to when they moved in together. For example, if they have children and one parent gives up work to look after the children, then it would be unfair for this parent to be left with nothing. There is also the fact that just because one person owns the home doesn't mean that that person is paying the mortgage. At the same time splitting the mortgage payments could be conceived as being the same as splitting rent on a rented property. The thing with this argument is that it should simplify things where the circumstances are straightforward but it would not work where it is more complicated and things have changed over time.
It should work just as it does with a marriage
In some ways this would be the easiest way for things to work, effectively bringing into law common law marriage. This would mean both halves of a couple would know exactly where they stand prior to moving in together and changes in circumstances would be taken into consideration during a separation. The reality, though, is that some couples when first living together have not got married for a reason; they do not want to be treated as a married couple. They might not be really for that sort of commitment, either emotionally or in terms of sharing assets in the same way a married couple does. Would it be right for a couple to live together only for a few months and then to have to split assets upon separation? And it could be argued that if you want to be treated as though you are married, then you should get married.
A couple should be able to make a legally binding agreement prior to living together
This could make things simpler. The couple could have a family law solicitor draw up a written agreement that states what would happen, and how assets would be divided if they were to separate. This would mean both know where they stand, and if they were to separate things would be fairly simple to sort out. However, changes in circumstances could prove problematic. For example they may have been splitting mortgage payments when they first lived together, but one person may have then been made unemployed and therefore hasn't contributed to the mortgage. It may not be considered fair, therefore, that this agreement would still stand.
Family law can be complicated, and can be even more so where cohabiting couples are concerned. There have been calls for a change in the law, and it seems as though this would be a sensible step considering the number of cohabiting couples these days. However, it is difficult to establish how exactly it should be changed, considering the differing circumstances of different couples and how they could change over time.
Andrew Marshall ©
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