A Brief Guide to Unmarried Couples

Many people are under the impression that there is little or no difference between a married couple and a couple where the parties are cohabiting.  The phrase “common law wife” is often banded about.

However, under English law, unmarried couples are treated quite differently to those who have married.

This is perhaps surprising since there are over 2 million cohabiting couples in England & Wales, with 1.25 million children dependent upon them.  Indeed the number of children born outside marriage has increased from 12% in 1980 to 42% in 2004.

Parliament has given the courts extensive powers to deal with issues regarding maintenance, finance, property and pensions following divorce, nullity and judicial separation proceedings.

These powers do not however extend to non-married couples.  Their possible claims against each other fall to be dealt with under contract law, property law, the Children Act 1989 and the Family Law Act 1996.  Disputes between separating cohabiting couples can be difficult, time consuming and expensive to resolve.

The Government asked the Law Commission to review the position, including remedies available to deal with the financial consequences of the breakdown of cohabiting relationships.  However, the Government has determined not to introduce any legislation about cohabiting couples at the present time.  A Private Members Bill is currently in being, although how that will fare remains to be seen.

One of the most complicated areas of law in this country involves disputes between couples who are either not married or registered civil partners concerning property owned either jointly by them, or solely in the name of one of them.

On 25 April 2007, the House of Lords (the highest court in England and Wales) dealt with an appeal in the case of Stack v Dowden, a decision that was widely reported at the time and, no doubt, sent out shock waves to people who believed that they were in a similar situation to Mr Stack and Ms Dowden.

Many people may very well feel that the position is unsatisfactory.  There remains a popular misconception that “common law marriage” exists under English law.  It does not.

The Government, recognising the problems that can arise, requested the Law Commission to report on possible changes to the law.  The Commission did so on 31 July 2007 when it published its report entitled “Cohabitation:  The Financial Consequences of Relationship Breakdown”.

However, rather than this spurring the Government into legislation, on 6 March 2008 it published its interim response to the effect that any reform to the law must await research into the cost of the Scottish experience.  Scotland as a separate legal system to that of England and Wales.

In the meantime, the courts will continue to be asked to deal with complicated areas of law at great expense to the parties concerned.

On 23 April 2008, the judgment of the Court of Appeal in the case of Fowler v Barron was published.  Some press reports following publication of that judgment suggested that couples who live and buy a home together would be required to equally divide the proceeds of such a property in the event that they subsequently break up.

Such reporting did not accurately reflect the court’s decision, nor the circumstances of that case.

Mr Barron and Miss Fowler purchased a property in Bognor Regis, West Sussex on 30 June 1998, having made a conscious decision to put the property into their joint names.  Regrettably, they did not take any legal advice as to the consequences of doing so.

Mr Barron may very well have had cause to regret this, since the purchase price of the property (of £65,000) was funded by a mortgage in the joint names of the parties (for £35,000), paid by Mr Barron out of his pension, together with a balance funded by Mr Barron from the sale of his flat.  Following completion of the purchase, Mr Barron paid the fixed costs of the property, whilst Miss Fowler did not pay any of those costs.

The Court of Appeal’s decision was that there should be a declaration that Miss Fowler was entitled to a half share in the property.  The court also ordered the sale of the property.

Unless and until the Government does introduce legislation to deal with the position, the best advice that a solicitor can give is that parties should;-

1. Seek legal advice before entering into any relationship that involves cohabitation;
2. Similarly, obtain legal advice before purchasing a property jointly with another.

For further information regarding matters arising from this article, please telephone Christian Abletshauser on
01932 852057, or email him: ChristianAbletshauser@meadowsfraser.com