Overreaching itself?

The number of people in cohabiting relationships doubled between 1996 and 2012, making cohabitation the 'fastest growing family type in the UK'. With more and more people choosing to cohabit without getting married, there comes an equally pressing requirement for family law to keep pace and reflect this societal shift.

The troubling urban myth of 'common law marriage' still prevails, with statistics indicating that nearly 60 per cent of people in the UK wrongly believe that couples who live together for a certain amount of time, are afforded the same legal rights as if they were married.

The recent case of Graham-York v York [2015] EWCA CIV 72 reinforced the principle that where property is held in a cohabitant's sole name, and there is no evidence of a common intention to split the beneficial interest, there is no presumption of a 50/50 entitlement on relationship breakdown.

Notwithstanding this and despite the fact the applicant's financial contribution was found to 'not amount to much' after 30 years of cohabitation, the judge awarded her a 25 per cent interest in
the property.

Autonomy versus protection

There are a number of difficulties associated with creating a 'cohabitation law'. There are too many and varied strands of existing precedent in relation to the topic, and there is also an obvious difficulty in providing a compact definition of the relationship. The abundant definitions of 'cohabitee' and 'cohabitation' already out there don't help.

The Cohabitation Rights Bill reached its second reading in the House of Lords in early December 2014, before reaching a standstill when the 2014-15 session of parliament prorogued. The aim of the draft legislation was to provide cohabitating couples with similar rights on relationship breakdown as those who are married.

Although cohabiting couples have the option to 'opt out' of the proposed rights, the Bill has faced criticism for disregarding the autonomy of those who deliberately choose not to marry. It is not the first attempt at bridging the gap of cohabitation regulation, and given its current status, unfortunately it may not
be the last.

The opportunity to opt out of the proposed legislation raises the question of whether the 'cohabitation problem' could be more simply dealt with by approaching it from a different perspective; by making cohabitation agreements recognisable and enforceable.

A similar concept has recently been proposed in the form of qualifying nuptial agreements. This would circumvent the difficulties of defining and regulating modern relationships. Historically deeds of trust have been the primary way of protecting the legal and beneficial interests of properties, owned by cohabitants.

A hybrid of the two could offer a modern and flexible form of protection for couples who do not wish to get married. The overarching principle that no agreement which is manifestly unfair to the applicant in the circumstances will be upheld, and can provide further protection to ensure a fair outcome is reached in all circumstances.

Where does responsibility lie?

There are added benefits for couples entering into a cohabitation agreement, as the costs of preparing an agreement are far less than those associated with a lengthy dispute regarding the ownership of property. With disagreements about finances being the primary cause of
relationship breakdown, an open conversation at the outset could also help to prevent fatal problems at a later date.

Ultimately there is a difference between protecting individuals and 'nannying' them. The latter can mean that legislators create a rod for their own back when people abdicate responsibility, assuming they are being 'looked after', which leads to indignation when they don't get the result they want.

Cohabitation legislation should focus on encouraging and recognising the autonomy of individuals in regulating their family relationships. While there is no expectation that everyone has an in-depth knowledge of the law, when it comes to interests in property and starting a family, there is an argument that this should require more than a little consideration and responsibility for one's own circumstances.

Regulating family relationships is a legislative minefield, but there is much to be said for recognising reality and autonomy, in order to be effective in creating the right structure for a fair outcome for all. 

Pippa Allsop is a family solicitor at Michelmores

She writes a regular blog for Private Client Adviser