Common Law Marriage for Cohabitants – Labour’s Pledge

Yesterday, Emily Thornberry, the shadow attorney-general, indicated at the Labour Conference that Labour was committed to giving millions of cohabiting couples rights to each other’s property if they split up, as part of a common-law marriage pledge.

The proposals would create a form of common-law marriage for those unmarried couples who have lived together for a few years similar to the “de facto” relationship status that exists for these couples in New Zealand and Australia.

Recent studies suggest that around half of the 3.6m unmarried couples who live together in England & Wales – a figure which has doubled in the last 25 years – wrongly assume that they acquire legal rights after a period of time of living together.

The many calls to reform the protection for unmarried couples have been met by a “well not now” or a plain “no” from those with the power to change the law, as Director James Pirrie explains:

“Back in the early 1980s pioneering family lawyers (including members of my firm, Family Law in Partnership), under the inspiration and leadership of John Cornwell committed to crucial reforms. These included the prioritisation of mediation, the introduction of no-fault divorce and reform of the cohabitation laws. Those founders of our national family lawyers’ organisation, Resolution, would have had no idea that it would take until April 2022 for no fault divorce to arrive. They would have been incredulous that forty years, on all elements of this basic package were still not in place.

Even in 2012 when John Cornwell was unwell, he was still taking opportunities to attend public events, raging at the fact that thousands of cohabitants lived in the belief that they were financially protected in their relationships. It doesn’t seem to matter that the legal profession continues to give the warning. Many of the 3.6m cohabiting couples have no idea that all they can currently depend on is:

• Property claims, that are decided – often unpredictably and very often unaffordably – applying rules that go back to the Middle Ages; and otherwise only
• Claims that one partner might make against the other because they are the main carer of a child born to – or adopted within – the relationship.  These claims are pursued within the crude process offered by the Child Maintenance Service fixing maintenance provision and otherwise by the court applying the little used and little-known-about “schedule one” jurisdiction (discussed here).

These regimes generally do not reflect the expectations of the parties, the moral justice of the situation (because that is not one of the criteria adopted) and certainly do not contemplate the future needs of one partner arising from roles within the relationship and the dependency that has accumulated in consequence.

Although Emily Thornberry presented the proposed reform in a gendered way, our experience at FLiP is that the predicament applies to men and women in all sorts of different relationships.

Quite what the reform proposals will look like remains to be seen – but the fact of a clear commitment for something very different from what we have now and which provides the prospect of protection for the financially vulnerable, dependent partner  – well one can almost hear John Cornwell say “about time!””

To find out more about your current rights as an unmarried couple, visit our dedicated website page here.