Common law marriage is as much a myth as the Loch Ness Monster or the Tooth Fairy. It simply does not exist, and those couples who are in cohabitating relationships need to be aware that they have no "rights" to each other’s assets and properties should they end their relationship.
There are those that think there are automatic rights for cohabitating couples, I’ve heard many differing “beliefs”, including that if a couple live together for a period of more than 2 years then they are deemed to be married in the eyes of the law, or that if a couple have lived together for more than 10 years , they are each entitled to half of the other’s assets – both are entirely wrong.
When an unmarried couple separates, each party retains the assets which are in each of their names – irrespective of whether that is the family home or the family business. To contest this, the party whose interest has been undocumented will have to go through the struggle of establishing that there was a joint intention for them to have an interest, using the highly complex Trusts of Land and Appointment of Trustees Act 1996. The starting and usually finishing point is the person(s) named on the deeds is the owner. In some circumstances it’s possible to claim an interest in the property if there was an intention to share the property and beneficial interest can established.
It is also possible for a parent to make claims for the benefit of children under Schedule 1 Children Act 1989 for a capital sum or property transfer. Any provision of capital reverts to the original owner when the child reaches 18 or 21 years of age.
The recent case of Paula Curran can not but invoke some degree of sympathy - Paula Curran and Brian Collins (both in their 50s) had been in a relationship for 30 years. Their home and valuable business, which they had run jointly, are owned in the sole name of Mr Collins. Ms Curran has nothing and applied to the Court for a share of these assets. The County Court judge ruled that Ms Curran is not entitled to share in either the home or the business. He felt compelled ignore his “human sympathies” and apply the law – which, in fairness to the judge, is his job. Ms Curran has now been allowed to appeal against the decision, as Lord Justice Toulson recognised that: “The law of property can be harsh on people, usually women, in that situation. Bluntly, the law remains unfair to people in the appellant’s position… “In order for her appeal to be successful, Ms Curran will have to show that the couple originally intended for her to have a share in the property and business which was originally purchased for £750,000. I, for one, will be watching the outcome of this appeal with great interest.
There is a distinct disparity in financial provision for former cohabitants in England/Wales and those in Scotland. The provisions made under the Family Law (Scotland) Act 2006 give those cohabitants who’s relationship has ended some degree of financial recompense and includes provision to claim for economic disadvantage, a pursuer’s entitlement to seek a capital sum from the defender would depend on if this is necessary to rebalance any contributions (ie mortgage payments) or disadvantages suffered for the benefit of the relationship or in order to share future child-care costs (if there are children from the relationship). The recent Supreme Court ruling in Gow v Grant has also paved the way for those older cohabitants where one party is likely to have suffered a greater financial disadvantage by selling their home and at least a portion of their income.
But there is a clear need for similar provision for cohabitants in England/Wales – the case of Paula Curran who is now left penniless, homeless and destitute only amplifies this need. With over 2.9 million people cohabitating in 2012 (ONS – Families and Households, 2012) – double the figure from 1996 - it is clear that more and more couples are choosing to cohabit, and cases like Paula Curran will increase in the coming years. The Government have no plans to change the current law, leaving Judges no option but to continue to be constrained to apply the law as it is. Instead the Government are focusing their efforts on a debate and Bill that will affect a very small percentage of the population, rather than bringing forth proposals that could change the law for almost 3 million people – and more in the coming years.
With the perpetuation of the myth of common law marriage, there will still be many couples who will not be aware of how the law currently sits on cohabitation rights (or rather, the extreme lack of them), clearer information is required for those who choose to cohabit, and particularly when buying property together, estate agents and conveyancing solicitors should be explaining the legal positions to starry-eyed couples who buy a house together; that the law will assume that they each own an equal share should they split up and sell the house – regardless of how much each party puts into the property, and if only party’s name is going on the deeds, the implications of this for the unnamed party. It is time to change the law on this issue, there are lessons to be learned from Scotland’s provision for cohabitants in the Family Law (Scotland) Act 2006 – lessons which England/Wales must take on board sooner rather than later – for many it is already too late.
Written by Ruth Langford