A strong call for the government to reform the rights of cohabitants has been issued by one of England's most senior judges.
Speaking at a press conference at the Royal Courts of Justice, Sir James Munby, President of the Family Division of the High Court, said that the Government had failed to act on " inescapable" reform of cohabitants' rights.
As a result women especially are being left with "nothing at all" even when they have spent years living with their partner.
The issue of cohabitants' rights is a long-standing disgrace. Many people who live with a partner as a married couple believe that the law will protect them if the relationship ends.
Exploding the myth of 'common-law marriages'
It is a widespread belief that you can have a 'common-law marriage' and the partners will have the same legal rights as if they were legally married.
But English law does not recognise common-law marriages and co-habiting couples have no more legal rights than if they were single individuals.
This can particularly affect property rights. It is frequently the case that the home a couple have occupied is legally owned by just one of them. But despite the fact that the other partner may have contributed to the household expenses over a long period that partner will not be entitled to any share in the property.
Women are “thrown on the scrapheap” says Sir James
Sir James said that he is aware of cases where co-habitation has lasted 20, 30, 35 years before a breakdown occurs. And the result very often is that the partner whose name is not on the deeds, usually the woman, is entitled to nothing at all.
He commented "She may be, to use the vernacular, thrown on the scrapheap, at a time when she has lost. . . because of her age, and because of the time she has been out of employment, where there's no way she can rebuild her career, in certain instances where had the parties been married she would have had a very significant claim to very significant financial relief. "
"Something has got to be done, that seems to me to be inescapable. In saying that, I'm saying no more than what judges have been saying for 40 years. "
Government unwilling to accept proposed reforms
There have been many previous calls for the law to be reformed. The Law Commission has already considered this in considerable detail, and recommended major reforms.
But despite all this the government has not given any indication that it is prepared to change the law.
Anyone who is living with a partner and is worried about whether they are entitled to a share in the home should check whether their name is on the title.
Co-habitees do not have same property rights as married couples
Claiming a share in a property when you don't have your name on the title is virtually impossible, so if you are in that situation then you would need to persuade your partner to transfer the property into joint names.
That may be easier said than done, as there is little that can be done legally if the partner is not prepared to do so.
But even when a home is in joint ownership the legal remedies that are currently available when a relationship ends are much less than they would be for a married couple or those in a civil partnership.
In most cases all a court can do is to order a property to be sold and the proceeds split between the parties. It cannot give one party the right to remain in the property, nor can it order any adjustment of the shares that each party is entitled to when the property is sold (although it may be able to determine what those shares are if there is some dispute about that. )
Many other countries now give equal legal rights to co-habiting partners as they do to married couples.
Not everyone will agree with giving co-habitees more legal rights
Not everyone agrees with the proposals to reform the law in this country. For example the following two comments (both anonymous) have been posted on the Law Society's Gazette website in response to their report on Sir James's comments:
- I am wholly against ‘protection’ for unmarried people. Marriage is a contract and should be a choice. Those who have chosen not to enter this contract should not be treated as though they have. What I believe should be put in place is a regular government advertising campaign to do away with the myth of the ‘common law spouse’ and/or the ‘two year rule’ that many people believe exist and ensure that everyone has the opportunity to understand that they will never have the rights of married people if they are not married. On this question education and not legislation is what I believe to be necessary and right. ”
- “He is wrong about cohabiting couples, and so are most of the bien-pensants, who have lost sight of the idea of personal autonomy and personal responsibility. It is quite wrong to pretend that people who have taken on the commitment which marriage represents "have really" or "sort of have" or "have not done the paperwork".
- "Women whose wealthy partners have refused to marry them" have chosen to remain in the relationship and should be held to their choice.
But these commentators may be out of touch with the reality of many cases where people co-habit for long periods.
There have been a number of cases where one partner (invariably the woman) has tried to claim a share in property owned in the sole name of the other. It is often reported in these case that the woman has made significant financial contributions towards the property, and may well have been told by her partner that she would get a share in the property.
So to leave her with no claim if the relationship breaks down would seem inequitable.
But while judges consider that their hands are tied by the existing law and the government fails to implement any changes the current situation will not change.