Legal remedies for unmarried couples who separate

Couples who live together and then break up should not be given the same rights as married couples and civil partners, the Law Commission says. However, unmarried couples with children or who have been together for a certain period of time should be given certain rights to property, money and possessions.

In a report published this week, Cohabitation: the Financial Consequences of Relationship Breakdown, the commissioners reject calls for equality of rights and instead recommend introducing a scheme of financial remedies on separation for cohabitants and their families.

The commissioners’ proposed reforms would apply only to cohabiting couples who have had a child together, or who have cohabited for an as yet unspecified minimum period of somewhere between two to five years. Couples would be free to opt out by a written agreement.

Financial remedies would reflect the parties’ contribution to the relationship, and priority would be given to any dependent children. There would be no concept of maintenance payments and no principle of equal share of assets.
Stuart Bridge, the commissioner leading the project, says: “The scheme we are recommending, in the light of consultation, is distinct from that which applies between spouses on divorce.

“It would not apply to all cohabitants and where it did apply would only give rise to remedies relating to contributions made to the relationship. We do not accept the argument that such reform would undermine marriage.
“We consider that our scheme strikes the right balance between the need to alleviate hardship and the need to protect couples’ freedom of choice.”
According to family lawyers group Resolution, the number of cohabiting households is predicted to grow from one in six to one in four by 2031. More than 70% of family lawyers surveyed by Resolution back the case for urgent reform, stating that the law fails cohabiting couples when they separate.
Julian Washington, partner at Forsters LLP, says: “The powerful and persistent myth of ‘common law marriage’ is a major cause of injustice for families. The Law Commission’s proposals are a fair and proportionate response to this problem.”

However, James Freeman, family law solicitor at Speechly Bircham LLP, warns: “There are likely to be problems with this proposed new system, not least the unpleasant prospect of litigation over what decisions and contributions were made over the course of a long unmarried relationship. It also remains to be seen whether the political will is there to make these proposals into law.”