New figures published by the Office for National Statistics reveal that the number of men and women in the UK cohabiting has increased from 1.5 million to 2.9 million in 2012. This article in the
Telegraph discusses these latest figures. According to the report, the number of cohabiting couples has risen from 1.5million in 1996 to 2.9million this year. Over the same period, married couples have dropped by nearly half a million to 12,185,000.
There are 4.6million married families with children, down by more than 600,000 on numbers just 16 years ago. By contrast, the number of cohabiting couples with children has more than doubled, from 539,000 to 1,131,000.
Couples who live together and later separate can only make claims against their former partner’s property by establishing a claim under trust law, which is a complex area of law. They cannot make claims for maintenance for themselves, capital or pensions. Usually their claims are limited to child maintenance and sometimes the provision of a house until the child becomes an adult.
There is growing support for a change in law to protect co-habitees upon separation, in a recent case before the Supreme Court - Gow v Grant  Lady Hale is quoted as saying the case “has lessons for the way the law should be reformed in England and Wales”
She said the first lesson was that there was a need for “some such remedy” as that provided by Scottish law and she supported calls by Law Commissioner Professor Elizabeth Cooke that reform should not be delayed before the “early days” of the next parliament.
“The second lesson is that reform needs to cater for a wide variety of cohabiting relationships which may result in advantage or, more commonly, disadvantage to one of the parties,” Lady Hale said.
“There is a tendency to concentrate upon the younger couples who have children, where one of them suffers financial disadvantage as a result of having to look after the children both during and after the relationship.
“It may be very difficult to say that the other party has derived any economic advantage from those sacrifices, but it is entirely fair that he should compensate the children’s carer for the disadvantages that she has suffered.”
Lady Hale went on: “This case was an example of such disadvantages arising in a completely different context, but one which is by no means uncommon these days: a mature couple, both of whom have been married before, each of whom has a home and an income from pensions or employment, but where one of them gives up her home and at least some of her income as a result of their living together.
“At the end of the relationship, one of them may be markedly less well off than she was at the beginning, whereas the other may be in much the same position as he was before or even somewhat better off. Such cases should not be forgotten in any scenario-testing of proposed reforms.”
Lady Hale said a third lesson from Scotland was that the lack of any definition of cohabitation, or a qualifying period of cohabitation for couples who do not have children, had not proved a problem.
She said the fourth lesson was that the “compensation principle”, although attractive in theory, could be very difficult to apply in practice because of the problems of identifying and valuing advantages and disadvantages.
Lady Hale concluded by saying that the flexibility of the Scottish law was preferable to the Law Commission’s proposals that losses should be shared, while the Commission’s list of factors to be taken into account could be a “useful addition” to Scottish law.
“The main lesson from this case, as also from the research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship.
“As the researchers comment, ‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’. English and Welsh cohabitants and their children deserve no less”.
It is interesting that yet again, Scots family law is seen as a bit of a trail-blazer in striving for fairness. Under the Family Law (Scotland) Act 2006, provision was made for and provides discretion to the court for both making of an award and the amount to be awarded when cohabitation has ended otherwise than by the death of one of the cohabitants. Usually, it is younger co-habitees with dependent children that would benefit from such provision to seek financial redress for “economic advantage, disadvantage or contribution”, such as the financial disadvantage as a result of having to look after the children both during and after the end of the co-habitation relationship. But, Lady Hale makes a very pertinent point about those more mature co-habitats, where one party is likely to have suffered a greater financial disadvantage by selling their home and at least a portion of their income. Lord Hope, delivering the main judgment in Grant v Gow held, inter alia, that; i) Although the general principle of fairness is not explicitly referenced in section 28, it is the overarching principle when making an award under that section: the purpose of having regard to the factors in subsection (3) is to achieve fairness in the assessment of compensation for contributions made or economic disadvantages suffered in the interests of the relationship. Therefore, the wording of subsections (3), (5) and (6) of that section should be read broadly; ii) Section 28 is unlike similar provisions relating to financial provision on divorce or the termination of a civil partnership: the rebuttable presumption at the end of cohabitation is that each party will retain his or her own property. Rather than a precise economic calculation, it is important to have regard to where the parties were at the beginning of their cohabitation and where they were at the end; iii) However, it may be helpful to refer to cases decided under section 9(1)(b), Family Law (Scotland) Act 1985, when the court is considering what might be taken to be an economic advantage, disadvantage or contribution for an order under section 28; iv) the natural meaning and effect of the phrase ‘in the interests of the defender’ contained in section 28(3)(b) and (6) is directed to the effect of the transaction rather than the intention with which it was entered into. ‘Provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum even though it may also have been suffered in the interests of the applicant’
But should those who choose not to seek state registration of their relationship (and in fairness there are some who are unable to formally register their relationship) expect the same level of legal protection as those couples who are married? Given that a co-habitation relationship does not always necessarily indicate permanence and commitment and indeed can be a transitory relationship, I would argue that no, there should not be the same level of legal protection and rights. Cohabitees are far more likely to break-up than marriages. The median length of UK cohabitations is under 2 years. Just 4% of these last more than 10 years (Ermisch & Francesconi, 1998). 84% of UK cohabiting couples dissolve within 5 years (Kiernan & Estaugh, 1993). Unmarried parents are still 4-5 times more likely to break up than married parents (Boheim & Ermisch, 1999; Lindgren, 1997). Within 5 years of the birth of a child, 8% of UK married couples have split up, compared to 52% of cohabitees, and 25% of those who marry after the birth (Kiernan, 1999)
Prior cohabitation raises divorce risks. Many studies across the world find that prior cohabitation raises the risk of subsequent divorce by around 40-85% (Bumpass & Sweet 1995; Kahn & London, 1991; Haskey 1992). Multiple cohabitation may be the risk factor.
But there does need to be some degree of legal protection for co-habitees that are financially disadvantaged by the end of the relationship, and I feel that there is adequate provision made in the Family Law (Scotland) Act 2006 – but this Act is only applicable to those living in Scotland. England and Wales provide little in the way of provision, as amply demonstrated by Kernott v Jones  case, and co-habitees often rely on the exceptionally complex TOTALA (Trust of and and Appointment of Trustees Act 1996), which concerns itself with property, and not financial provision for co-habitees. The case of Gow v Grant , in the words of Lady Hale; ”clearly illustrated that there is a need for legal reform to provide a similar remedy in England and Wales. Although the Scottish law would benefit from a list of factors to be taken into account in the exercise of the court’s discretion, the inherent flexibility was preferable. Yet the main lesson was that ‘a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship’ “
So, should co-habitees have the same legal protection that married couples are afforded under the MCA 1973, or should they accept that by choosing to not marry (or being unable to marry) that they have little rights to each other''s property and for financial support after the end of the relationship?
This is an interesting debate! If people choose not to get married, what are their reasons?
You could argue that they decide not to marry because they do not want that permanent commitment. Or that they do not need a ''piece of paper'' to confirm their relationship or love for one another. In those circumstances they have made a conscious decision not to confer a legal status on that relationship. So you could argue that they should not then look to the law for resolution when their verbal agreement breaks down.
However, there are often other reasons that people may not choose to marry. There may be pressure against it from their families or communities. They may be in the process of divorcing someone else who is using delaying tactics. They may have chosen a partner that does not want to marry them, regardless of their own preference.
Marriage is less and less popular and as many of us here know, it can have devastating consequences if marriage breaks down. Many people are put off marrying for that reason (ask Haway for his opinion on marriage!). Men and women often seem to come out of marriage breakdown in an unequal way due to some archaic presumptions of the roles that each spouse plays. If I personally made a decision to cohabit in order to avoid that scenario, I would not want new legal constraints imposed on my decision not to marry.
The law as it exists protects children from broken relationships outside of marriage. There is protection for property owners. I think I would have to say that anyone who wants further advantage from the law in line with marriage should probably choose to marry!
Or perhaps they choose not to marry because they are wary of the financial implications that could be imposed if that marriage ends in divorce. As pre-numps are not yet established in UK this is the only protection someone has against potential loss due to divorce. Even if it is against the other person''s wishes- they are still signing up to a relationship that has no legal grounding.
If there is a push towards similar laws as Scotaland in regards to cohabitation, perhaps there should also be similarities in SM. Otherwise it should be up to couples to come up with financial/ legally binding agreements in relationships that arent going to result in marriage but could be long-term and end. It will be more like a business deal but at least each person knows where they stand.
Your comment about people being wary of the financial implications is what I was referring to when I commented about Haway! I am sure there are a lot of people who have vowed never to marry/remarry precisely because of the potential financial fallout.
I think that if pre-nuptial agreements were made they would still stray into the territory that puts people off marrying. I am not sure that pre-nups would make the final financial position any fairer. For example, I could have a pre-nup that says that I won''t claim anything from my co-habiting partner in the event of relationship breakdown, and he makes millions whilst I stay home and care for him, or our children, thus making it possible for him to make those millions. According to that agreement I would walk away with nothing (provision for children aside). A clumsy example I know, but I used this to illustrate how a pre-nup does not necessarily make things fairer for all parties.
I was refering to pre-numps having grounds as a way to make men less wary of marriage. In terms of cohabitating couples- there needs to be some agreement into what is split in regards to property ect.
Example- woman moves in with man with her 2kids from previous relationship. It lasts 5 years but ends. She never contributed to the financials of the house, enjoyed living rent free but that relationship has now ended and so has the perks- there should be no rules to that cater to her housing needs or those of her children (that arent his).
Neither party should be able to claim anything from the other party unless it is owed (financial loan ect).
I think your example about stayig home with children is a good point, however if a man cant commit to marriage- why should the woman give up her career to raise children when there are no guarentees? Essentially that is what marriage is, an insurance policy that matures when divorcing with children. This is probably coming out all wrong but Im used to getting slated
Marriage is a mutual joining of forces and resources.
The longer the marriage lasts, the more the joins become invisible hence the term ''the matrimonial pot''. There is only pot and dividing it is difficult as the institution of marriage does not have an official exit procedure.
It is well established in law that a parent staying at home to bring up children adds the same value as the spouse who goes out to work and provides the only incoming wage.
This comes as a shock to a lot of people as they were quite happy for the situation to exist when all was well and good but seek to unbalance the calculations upon divorce as they ''put in more money'' than their spouse.
Input into a marriage is not based on money alone and what each person inputs into a marriage is largely determined by their work ethic.
If you demand nothing from your spouse during the marriage and they do nothing, you cannot blame them for putting in nothing.
Lots of what Ruby rights makes sense, yes those who do not marry will never have the same rights as those who do, but maybe TOTALA is to far the other way, not to mention its very complicated, Kenott v Jones seems to fly in the face of it also, maybe a happy medium closer to the Scotish model would be a step in the right direction.