Is reform of cohabitation long overdue?
A change in social attitudes towards relationships has led to a vast growth in cohabiting couples, resulting in a decline in marriage1 . In the secular society today, marriage is no longer regarded as a social norm for some people and many couples feel less constrained by conventions and traditions. In 2015, it was estimated that there were 3.2 million cohabiting couples, making cohabitation the fastest growing family type in the UK2. According to the British Social Attitudes survey, many believe that there is little difference between marriage and cohabitation3 . Despite this, Anglo Welsh law has refused to allow cohabitants and married couples the same rights, predominantly in regards to property.
Cohabitants’ knowledge of their legal position
The ‘common law marriage’ has caused much concern over the legal position of cohabitants and their rights in law. Unlike marriage and civil partnerships, cohabitation does not provide legal status to a couple. Many cohabiting couples believe that by simply living together, they have acquired the same rights as married couples, referring to their relationship as a ‘common law marriage’ 4. The use of the phrase ‘common law marriage’ has been widely used by the media, adding to the confusion.
The Legal Landscape
The leading issue on the separation of a cohabiting couple is the lack of protection governing the distribution of the former family home when the relationship breaks down. Unlike married couples, the courts do not have the ability to exercise their discretion to redistribute the property when the relationship breaks down in a cohabiting relationship5 . Cohabitants are left to rely on the law of equity, which offers very little protection. In Petitt v Petitt, it was held that if a cohabiting couple has formed an express agreement, setting out how they intend to share the family home, then this is conclusive. For instance, if a couple owns the family home as joint tenants, this would infer an equal share in the property. It is possible to rebut this presumption if it can be shown that the couple’s intention had changed. For example, in Jones v Kernott, the intention changed when Mr Kernott moved out of the family home and stopped making any financial contributions. If the couple own the home as tenants in common then their share of the property should be clearly specified.
The issues arise when there is no express agreement as the Courts can only infer the parties beneficial interest through the law of trusts. Resulting trusts arise when a party makes financial contributions to the property without receiving anything in return. In Oxley v Hiscock, the court concluded that an equal share would be unfair given that Mr Hiscock had financially contributed more through the proceeds of the previous home, a mortgage and through his savings.
The constructive trust is the predominant mechanism used in dividing the family home between the separated cohabiting couple. In order for an interest under a constructive trust to arise, it must be established that there is a common intention that both parties should acquire a beneficial interest and secondly, the claimant has detrimentally relied on the common intention, which becomes unconscionable to deny any interest in the property6. Burns v Burns7 notoriously highlights the failure of equity to deal with family circumstances. The property was held in the sole name of the partner. The woman made no contribution to the purchase of the house but continued to look after the children and pay for house bills and household goods. Despite these contributions, the court held that the woman had acquired no beneficial interest in the property because she had not made any contribution to the purchase of the house. Similarly, in Curran v Collins, the Court held that Ms Curran could not establish an interest in the property as she had made no financial contribution to the purchase. Ms Curran had merely paid for her own expenses.
Reform in this area is seen to be a necessary action to prevent great numbers in society from suffering financially due to the law failing to offer adequate protection. Although equity attempts to assist cohabitants, the complexity of the rules and the strict approaches adopted by the courts, leads to many difficult decisions. Many cohabitants continue to believe in the common law myth despite various attempts to resolve this, placing them in a vulnerable position due to the lack of awareness of their status. The best way for cohabiting couples to establish an interest in the family home is either to draw up an agreement or, to ensure the property is held in joint names.
1. Éva Beaujouan and Máire Ní Bhrolcháin, ‘Cohabitation and marriage in Britain since the 1970s’ (2011) Population Trends Journal 35.
2. ONS, Families and Households 2015.
3. Éva Beaujouan and Máire Ní Bhrolcháin, ‘Cohabitation and marriage in Britain since the 1970s’ (2011) Population Trends Journal 35, 36.
4. Catherine Fairbairn, ‘Common law marriage and cohabitation’ House of Commons Briefing Paper Number 03372, 9 February 2016, 3.
5. Matrimonial Causes Act 1973, s 25(a)-(e).
6. Eves v Eves  1 WLR 1338.
7.  Ch 317 (CA).
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