In England and Wales, an area where law and society appear to be operating in different spheres is in respect of the law's treatment of cohabitating couples. Numbers of marriages are declining, with the Office for National Statistics having confirmed that cohabiting couples have been the fastest growing family type in the UK, with an increase of 25.8% over the decade 2008 to 2018, yet no steps have been taken to provide even the most basic legal protections for cohabitees: upon separation or death, unmarried couples or those who have not entered into a civil partnership, have very limited financial claims against one another.
Despite the common misconception, there is no such thing as a “common law marriage” and any claims on separation essentially revolve around any potential interest by one party in a property held by the other, which is determined purely on the basis of property law. If there are children, claims may be made for the children in terms of providing housing and maintenance for the child’s minority, but the cohabiting partner still does not have a claim in their own right. As a consequence, should the relationship break down, the stronger economic party is able to walk away without (or with limited) financial responsibility towards their partner.
Reform of the law is required and a good place to start is by looking at the treatment of cohabitating couples in other jurisdictions.
In France, cohabitation (or "concubinage") does not by itself impose any duties or obligations and no procedure is required to end it, akin to the regime in England.
However, since 2009, cohabitants have been able to enter into a Pacte Civil de Solidarite ("PACS") which is a contract entered into by two adults, of different sexes or of a same sex, to organise their common life. By way of a PACS, cohabiting couples are able to choose to follow a joint ownership regime, where most assets acquired during the partnership will be considered as jointly owned assets and each partner will be allocated half the value of the assets at the time of the dissolution of the partnership.
In Belgium, there is a regime of "cohabitation legale", where cohabitants are able to enter into a cohabitation contract in circumstances where they share responsibility for joint expenses incurred in the course of their daily lives and therefore are able to benefit jointly from any assets acquired during their partnership.
However, cohabitation legale in Belgium is wider in its scope when compared with its English and French counterparts: not only it is available to both same-sex and heterosexual couples, family members or any other persons who are cohabitating without sexual connotations are able to enter into a cohabitation contract and therefore, benefit from the same legal protections.
Unlike the above jurisdictions where parties must enter into a registered partnership, in certain provinces in Canada, cohabitants are automatically granted legal remedies. For instance, in British Columbia, cohabiting couples are granted the status of common-law partners and the same fundamental rights as married couples after two years of cohabitation. Common-law relationships fall under provincial jurisdiction, and so what constitutes such a relationship, and how it is viewed legally, differs greatly from province to province and in Quebec, common-law relationships are not recognised.
A regime like that of British Columbia, may raise concerns for those couples who have made a conscious choice not to marry, yet find themselves automatically with quasi-marital responsibilities after only two years. Those couples are able to "opt-out" of this regime by way of a cohabitation agreement.
In England & Wales, unless cohabitants enter into an agreement of their own accord, there are no such remedies available to them, where other countries have been able to provide some legal remedies for cohabitants. In this jurisdiction, recognition needs to be given from the outset that if their relationship breaks down, cohabitants are able to access a regime governing the division of assets acquired during their partnership.
This could be in the form of "opt-in" or "opt-out" binding cohabitation agreements, however, this may lead to the financially stronger partner insisting on the latter. To moderate this, after a certain period of time, there could be the introduction of a scheme by which parties automatically have the right to make financial claims against each other for an order reflecting the respective financial contributions made by the parties and to compensate them accordingly. While there are a number of options for a reformed system, what is clear is that it is high time for reform of the law in England and Wales.