Living together

"Fate has not been kind to her", said lord Justice May in Burns v Burns [1984] Ch 317, which involved a woman who had lived with her unmarried partner of 19 years as husband and wife, raised their two children and thereby reduced her earning capacity, and yet failed to establish any interest in the house in which they lived together.

But the judge felt he could not redress the apparent unfairness:

'When one compares this ultimate result with what it would have been had she been married to the respondent'¦ she can justifiably say that fate has not been kind to her. In my opinion, however, the remedy for any inequity she may have sustained is a matter for Parliament and not for this court.'

On 31 May, the Law Commission heralded the beginning of what is, for many, a long hoped-for change to the perceived injustices faced by many unmarried couples whose relationship ends through separation or death with the publication of its consultation paper, 'Cohabitation: the financial consequences of relationship breakdown'.

The background to the consultation process is to be found not only in the many reported cases whose facts and consequent outcomes mirror those in Burns, but also in the debates that surrounded the passage through Parliament of the Civil Partnership Act 2004, which bestowed upon same-sex couples the right to register a civil partnership and to acquire rights akin to divorcing spouses on the dissolution of a civil partnership. Members of the House of Lords questioned the lack of legal remedies for couples who live together, but do not marry or register a civil partnership. Such a vacuum is arguably starker still in the aftermath of high-profile divorce cases such as Miller and McFarlane ([2006] UKHL 24).

There is also the social context. Around four million people cohabit in England and Wales, an increase of 67 per cent in ten years, and around three-eighths have a child/children. One in six heterosexual couples cohabit without marrying, but by 2031 that figure is expected to rise to one in four. As the Law Commission concludes: 'Cohabitation is an increasingly prevalent social phenomenon, and'¦ the issues to which it gives rise are unlikely to go away.' At the same time, 59 per cent of cohabitants wrongly believe that English law recognises cohabitants as 'common-law spouses' with resulting rights and obligations.

Although the issues considered in the consultation paper include the rights of a surviving partner where his/her cohabitant has died intestate and whether cohabitation agreements should be legally enforceable, its main focus, and the aspect that has attracted most press interest, is whether separating cohabitants should acquire rights of financial relief.

The arguments in favour of extending financial rights to separating cohabitants include :

• The changing social attitudes and demographic referred to above.
• The lack of awareness among cohabitants that they are in such a vulnerable position in the event that their relationship breaks down.
• Currently, the law which applies when cohabiting relationships break down is not only inadequate, but also complex. The Law Commission described it as being a 'patchwork' of trusts, property and family law. This has a deterrent effect for some and leads to uncertainty for those who do decide to pursue claims.
• The more ancillary relief judgments that are handed down, the more the gulf grows between the experience of divorcing spouses and separating cohabitants when it comes to determining their financial claims. Does the absence of a marriage certificate alone justify this disparity?

Among the arguments that may be made against reform are the following :

• It invades the autonomy of those who have chosen to cohabit rather than marry; however, that presupposes that those who 'choose' not to marry are aware of their rights, or lack thereof, which research has shown not to be the case. What is more, under the proposals being mooted, parties will be able to 'opt out' of the new scheme.
• It may encourage couples not to marry and therefore undermine marriage; actually conferring financial rights on separating cohabitants may encourage more to marry and in any event this ought not to be seen as a justification for prolonging the hardships suffered by separating cohabitants.
• Cohabitation does not provide sufficient justification to interfere with the parties' property rights on separation; query whether this argument holds good where there are children or the relationship has been long.
• Allowing such claims may lead to costly and speculative litigation; but 'eligibility to apply' criteria would reduce this risk and in any event the uncertainty that surrounds the current law already has this effect.

The arguments in favour of reform become stronger still where there is a child of the relationship and/or the relationship has been long; conversely one can understand the counter-arguments where the relationship has been childless and/or short. These are filters which the Law Commission is actively considering.

It has long been the view of most practitioners that the lack of financial relief available to cohabitants on separation is difficult to justify and results in perverse outcomes. There are many women (and indeed men) who continue to find themselves in situations similar to Mrs Burns after the end of their non-marital relationship and that this is so stands in stark contrast to their perception of their rights and to what the position would have been had they married. This dichotomy has already been rectified in countries including New Zealand, Australia and, most recently, Scotland. The Law Commission of England and Wales concludes that: 'There is a strong argument that the law should be reformed in order to bring about fairer outcomes for cohabitants on separation.' We must indeed make this an urgent priority.

Joanne Edwards is a partner at Manches LLP