Legal Gaps in Cohabitation

Despite an increasing trend of couples choosing to cohabitate rather than get married, there is a lack of legal response to the legal issues that such couples face in the event of a breakdown of the relationship. Such legal issues arise in the area of property rights and unlike breakdown of marriages, which give greater protection to a divorcing couple under the legislations have been passed to guide the division of property and financial resources; cohabiting relationships do not receive equal protection. Consequently, cohabitating couples have largely relied on existing property laws to solve such issues, triggering some scholars to propose several law reforms that give cohabitants greater property and financial rights. However, other scholars have stood on the opposing side of this proposal. The main aim of this essay is to evaluate the arguments for and against the proposals by some scholars for greater property and financial rights to cohabitants upon relationship break down. The essay first discusses the nature of cohabitation and the resultant legal issues in property law and then goes on to discuss the arguments for and against reform in law with respect to cohabitant rights.

Nature of Cohabitation

Cohabitation is defined as “the state of living together and having a sexual relationship without being married.” The Scottish Law Commission defined cohabitation as a relationship between a man and a woman not living together as husband and wife, although not legally married. Although, this definition is obsolete as it does not take into account same sex couples, it is indicative of the nature of cohabitation as a relationship of intimacy between two individuals in a marriage like relationship while not being married.

Cohabiting couple families are the fastest growing family type in the UK, between 1996 and 2016, and as per the ONS, it has doubled from 1.5 million to 3.3 million opposite sex families and between 1996 and 2017 the number of same sex cohabiting couple families increased from around 16,000 to 101,000. This means that they account for 20% of all families in the UK compared with 10% in 1996. This indicates that cohabitation is more prevalant now than ever before and is evident of a significant social practice. The reasons why more couples are opting for cohabitation are decline in social stigma associated with cohabitation,less protocol in the event of a breakdown of relationship as compared with marriage, and a fear of divorce. However, what is of concern in that many cohabiting couples are unaware that they hold no specific legal status.

Property and Financial Resources Disputes among cohabitants

The most common disputes among cohabitants upon separation is distribution of property and financial resources. The absence of legal framework means cohabitees must rely on doctrines such as proprietary estoppel, and implied trust. This determines their entitlement to property and financial rights acquired during the relationship as well as ownership of properties.

The courts have tried to find a resolution to this issue by ascertaining the parties’ intentions when they bought the propoerty. A landmark case in this area is Stack v Dowden,in which it was recognised that beneficial ownership presumptively mirrors legal ownership. This allowed Ms Dowden to be entitled to 65% of the property which was bought in joint names with Mr Stack, her partner. Another key case is Lloyds Bank v Rosset in which equity was used to impose a trust. In Jones v Kernott, the court held that couples should be aware that changing living arrangements or not paying mortgage can be reasons to readjust the original shares of the parties, irrespective of what is written in the co-ownership documents.

The Key Debated Issue

The cardinal point is that reform is needed to address inadequacies in the current law for cohabitants on separation. This is because cohabitees do not share the same rights as married couples. This needs to be reformed as they are the dominant family type in the UK, therefore they should be protected. Some have suggested that consideration must be given to cohabitants in the context of property rights as cohabitation has been become commonplace.However, many disagree with this proposal and believe that the extension of such rights can ruin the sanctity of marriage. The Law Commission has also suggested reform for cobitant rights as a solution to the current illogical, uncertain and unfair trust law which operates for cohabitees, needs to be found. Fundamentally, the law should be based on fairness therefore the current law does not coincide.

Arguments for reform

The rapid growth of cohabitation combined with the lack of legal protection available upon separation calls for reform. The law commission proposed the cohabitation rights bill (HL) 2016-2017 which was introduced by Lord Lester. However, earlier attempts to reform have not been met with success. In 2009, the government rejected Lord Lester’s Cohabitation Bill. In 2013, the government rejected a proposal for intestacy reforms for cohabitants. These rejections have come in the face of criticism for lack of reform. Critics such as, Baroness Hale, believe that “Unmarried couples should be given greater legal protection when their relationship breaks down.” This is because cohabitation and marriage do not share any differences other than they have legal recognition on the basis of a marriage certificate. Baroness Butler- Sloss also argues in favour of reform as “this will remove the burden on the state after cohabitation.” This is because in circumstances where the woman has left her career to cater to the welfare of the children and the home, causes her to rely on the state as a safety net when the relationship breaks down. This shows that reform will minimise or eliminate dependency on the state as the partner will financially provide afterwards such as when divorce occurs. On the other hand, there is no burden on the state if it makes such reform as argued by Miles, Wasoff and Mordaunt as there will be no significant additional demands on courts and justice system.

Reform will solve the injustice caused by the complex rules of property and trust law and the requirements needed such as the emphasis on all trusts being written. This makes the prospects of success unpredictable and clients cannot afford to risk litigation which may be costly and ultimately unsuccessful. The law should be clear and reasonably predictable. The lack of predictability the distress of relationship breakdown and does not produce fair outcomes. This can be reduced by giving applicants a “right” in their own action.

The current law relies on trust law which is not tailored for individual relationships. This can cause one party to be unjustly enriched at the expense of the other. Lord Walker also rued the uncertainty and unpredictability involved in the current situation.

The law does not resemble other jurisdictions in the modern world and indeed in England’s neighbourhood. The UK Supreme Court specifically mentioned the reform in Scottish law in this respect in Gow v Grant,and suggested reform of the English law on cohabitees’ rights in line with the Scottish reform. The Scottish law underwent change in this respect in 2006, when the Family Law (Scotland) Act, Sections 25 to 30 were introduced to provide certain rights of cohabitees. Irish law too underwent a change with the introduction of reforms under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

The reforms in other countries and the status quo in England and Wales with respect to cohabitant rights exposes the slow response in England and Wales to rights of cohabitants.

Arguments against reform

A key opponent of reforms for cohabitant rights is Baroness Deech, and she states that such reform retards the emancipation of woman and takes away choice. This is because some couples may be trying out their relationship before taking the step of marriage therefore they should not have penalties imposed upon them upon a breakdown as this is the outcome that some may be avoiding by not choosing marriage. This also removes the idea of a clean break which most couples aim to find after a breakup and this commitment may result in a dependency culture amongst women.

The Evangelical Alliance believe that reform of cohabitation rights undermines the institution of marriage and that imposing rights and duties on cohabiting couples would amount to a cut price or reduced version of marriage. This is because they are reaping the same rewards that married couples have. This is seen as a quasi-divorce regime.

Some suggest, rather than redrawing the entire law, why not publicise and promote the importance of protecting property and financial rights upon separation through literature or advertisements. This can solve the misguided belief of ‘common law marriage’

the cohabitation agreement is currently avaliable and is legally binding and sets out the finances and property upon seperation. Recently, a poll revealed that more than four in five Britons agree that the government should ensure that cohabitees are aware they do not share the same legal protection as married couples upon seperation or death. Statistics show that 51% believe that, after living together for more than two years, then they are entitled to similar rights of married couples. This is a myth regarding cohabitation that needs to be cleared or responded to as cohabitants are risking their financial future on the basis of this myth.

Cohabitants already have a legal mechanism they can use to obtain financial and property rights. In cases where children are involved, the 1989 Children Act provides that the parent may apply to court for the other parent to support the child and the carer by property or maintenance. Cohabitants can also obtain ‘reasonable financial provision’ under the inheritance provision for family dependents act if the relationship ends on the death of one of the parties. A cohabitee can claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) which permits a party in a cohabitating relationship to use ss.14 and 15 to receive an equitable portion of the family home upon separation. Proprietary estoppel can act as a successful legal tool to acquire property, if a party was under the assumption that they will acquire property and through this belief it has acted in their detriment. There are several legal devices which allow a cohabitant to have property and financial rights therefore the law does not need to be changed, rather it can be widened. However, this just creates a piecemeal approach to cohabitant rights, which has unsatisfactory repercussions for the individuals involved as the law is uncertain and unpredictable.

Opposers of reform state that even when cohabitants had the opportunity to protect themselves they didn’t. For example, ‘Living together campaign’ put draft agreements for cohabitants and 18% felt that no action was needed. This shows that even when cohabitants are aware of their rights they do not protect themselves.

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Finally, commentators oppose reform because there is nothing preventing couples from getting married and being entitled to the same rights as married couples. The law should not have to change because they do not want to marry. In effect, cohabitants have all kinds of reasons to not marry.

Conclusion

To conclude, there are strong arguments for reform. The key reason being that legislation should reflect social change and cohabitation has been on the increase since the 1970s and marriage has declined therefore couples should have set legal protection after a certain amount of years. Marriage, civil partnerships or death should not be the primary route of entitlement. This idea is outdated and does not conform to the social realities of this time. Law should respond to these social realities else it leaves gaps for the rights of cohabitants, which are not adequately addressed by the current legislation which is piecemeal. Therefore, the arguments in favaur of reform are stronger than the arguments against the idea of reform.

Bibliography

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