Is it time for a Cohabitation Reform?

The latest round of statistics in marriage versus cohabitation appear to indicate that almost 10% of the adult population are now living together in a relationship that does not involve marriage.

Cohabitation has a long way to go to catching up with marriage as the same statistics appear to indicate that more than half of people aged 16 or over are living as part of a married couple. The gap however is slowing closing.

Relationships however will continue to fail. There will continue to be separations, marriage annulments and divorce papers filed which will always prove to be difficult emotionally and also from a practical point of view, with separated parties having to go through the difficult process of dividing assets and arranging their future housing needs.

The problem is that we have two completely separate systems for dealing with relationship breakdowns.

The first of these is the divorce legislation which has been in place for a long time and which contains a framework to deal with applications for “financial remedies”. If the parties cannot agree, the court has a list of factors which is required by law to take into account when carrying out the difficult balancing exercise as to how assets are to be divided. These factors include the needs of parties and especially the housing needs for children.

On the other hand there is no equivalent framework to deal with the fallout from the ending of a civil partnership. There is no statutory provision for maintenance between the adults. There is no framework to deal with a division of property. The only common factor is the Child Support legislation which applies to all families.

In cohabitation cases, the issue of ownership of property can be dealt with only through the relatively narrow focus of Property & Trust law and primarily through applications for declarations of legal interests and for orders for sale under the Trust of Land & Appointment of Trustees Act 1996.

In such circumstances the court is primarily is looking to see what stated legal ownership of the property is and whether there is any evidence that it was intended that the non owner should have a share of the house or in the case of jointly owned properties whether there was any intention of the split of ownership being anything other than 50/50.

The court focuses on ownership and intentions and is not driven by factors such as housing needs.

We therefore have on the one hand the highly discretionary needs based divorce framework and on the other a landscape on which there is no recognition of or provision for needs which is based purely on property ownership arguments.

It is therefore very likely that two couples separating in the same street could have their future and quite possibly their children determined by whether or not there is a marriage certificate.

It could be argued that is as it should be. If someone has chosen not to enter into the commitment of marriage then they cannot complain that there is no legal framework in place to support the ending of a relationship which in itself has no legal status.

I have no doubt that some property owners are very careful when entering into relationships, they avoid doing or saying anything or taking any money, which could give the non owner any possibility of an argument that they should have a share of the house.

There is a strong argument for general advice and education on these matters and if people do wish to go into cohabitation in the knowledge that it would not create any legal obligations between the parties then at least they will do so with their eyes open. Quite where that advice would come from is difficult to say. Individuals generally do not take advice about legal implications when they begin relationships.

This is not a situation where something “obviously” needs to be done because there are many “pulls” in one direction as there are in the other and whether the present situation is good or bad very much depends on where you are standing.