To live together and have a sexual relationship without being married.
The legal statutory definition:
A man and a woman who are (or were) living together as if they were husband and wife; or
Two persons of the same sex who are (or were) living together as if they were civil partners.
More couples are choosing to live together outside marriage. In 2015, out of a total of 18.7 million families living in the UK, 12.5 million consisted of married couples (including same sex married/civil partnerships) and 3.2 million families included unmarried couples. This is compared with just 2.1 million cohabiting unmarried couples in 2000. Very significantly, cohabitation appears to have reached a tipping point in terms of social acceptability so that it is moving swiftly from rare to commonplace and (if present trends continue), in due course to the norm. To illustrate the pace of change, the number of people who were cohabiting with one another in the 1980’s were a fraction of the number doing so now. Between 2000 and 2010, the number of children living in opposite sex cohabiting families increased from 1.3 million to 1.8 million (an increase of over 38%).
Over the last three decades, there have been developments in the law affecting the unmarried. Unmarried fathers can now acquire parental responsibility for their children by being present at registration of the birth rather than having to seek a court order or written agreement. Unmarried couples have been recognised as potentially providing a stable and loving relationship into which children can now be legally adopted. Limited rights have been introduced for unmarried partners who are financially dependent on their partner to claim against the partner’s estate on death.
However, popular misconceptions remain. In fact the above developments have contributed to this. Many couples in long term unmarried relationships mistakenly believe they enjoy rights akin to their married counterparts. Some cohabitees think of themselves as the ‘common law spouse’. Calling oneself a ‘common law spouse’ might to the more conservative minded, carry some significance in terms of respectability, but it is no more than a self-appointed ‘label’ to which no legal rights attach whatsoever. The lack of awareness is sufficiently widespread that the Ministry of Justice has funded two voluntary sector partners to manage a campaign to make cohabitants more aware of their legal status and provide them with practical advice on how they can protect themselves and their families, should they wish to do so.
What is the difference between being married and unmarried?
Here is a familiar quote:
I John take you, Jane,
to be my wife,
to have and to hold
from this day forward;
for better, for worse,
for richer, for poorer,
in sickness and in health,
to love and to cherish,
till death us do part;
according to God's holy law.
In the presence of God I make this vow
Jane, I give you this ring as a sign of our marriage.
With my body I honour you,
all that I am I give to you,
and all that I have I share with you,
within the love of God,
Father, Son and Holy Spirit.
They are beautiful and momentous words. Whatever you think about marriage as an institution, the meaning of the marriage vow is clear. The couple openly promise to stick with one other through thick and thin for the rest of their lives and to share all that they have. Whilst some unmarried couples may make informal promises to one another, there is no legal significance to this and many more couples make no promises at all. They are free to separate at any time without legal repercussions.
There are some legal implications in relation to the arrangements for unmarried parents and their children (dealt with later), but the really significant practical and legal differences lie in the approach to financial arrangements on separation.
From a legal perspective the promise made by a married couple makes the task of deciding how to deal with their financial arrangements simpler on separation. This is reflected in the act of parliament, which gives the courts powers to decide these things. It is known as The Matrimonial Causes Act 1973. It gives judges a clear set of guidelines. It requires them to take into account things like:
- The needs of the children;
- What each spouse earns;
- How much capital they each have;
- What they each need;
- Whether either of them has health problems;
- How long they have been married;
- What standard of living they have enjoyed together;
- What they have each contributed;
- Whether either of them has behaved very badly;
- What benefits either of them would lose when the marriage ends (e.g. pension rights);
Regardless of who owns property, savings or pension rights or generates the income in a marriage, the court can adjust it to produce a fair result. Lots of case law (previous decisions) has been created to help judges interpret the rules. Consequently lawyers are able to advise their married clients of the range of possible outcomes with a fair degree of accuracy.
To give effect to their decisions the divorce courts have the powers they need. They can adjust shares in marital property (regardless of which spouse is the legal owner at the end of the marriage). They can make maintenance orders, lump sum orders and share out pension rights.
For the unmarried, fairness is irrelevant to the outcome. The court cannot take into account any of the things referred to in the list above when deciding how to settle their financial arrangements. Neither can the court:
- Adjust shares in property;
- Make a maintenance order for one partner against the other;
- Make lump sum orders for one partner against the other;
- Share pensions;
So for example, a judge cannot:
- Order an unmarried man to transfer some of his share in a jointly owned property to his former partner because she is earning less and cannot borrow enough to purchase a home of her own.
- Order the high earning former cohabitee of an unemployed, disabled woman to pay maintenance to her.
- Order a wealthy banker to pay a lump sum to his former unmarried partner who has no savings of her own.
- Order an unmarried fireman with a generous pension to share it with the mother of his children even though she might have sacrificed career aspirations to look after them.
Why does this difference sometimes create problems for unmarried couples?
The commonest cause of dispute in unmarried relationships is differing expectations combined with reluctance to address ‘the elephant in the room’. ‘Maybe our relationship will end or be damaged if I ask the question which is troubling me.’ For some, not asking is a risk worth taking and so the couple proceed at cross-purposes. Some labour for years under the illusion that their partner shares their view about what should happen financially if they separate.
Consequently, separation after a committed relationship can have catastrophic consequences for one party. The most extreme situations will see the person who owns none of the assets left virtually penniless after a long relationship because their partner owns all the assets and offers no financial provision whatsoever. There are remedies available for financial provision for children, but one partner often finds themselves left out in the cold financially.
Irrespective of what may be said after a relationship ends, we have all felt moved to give assurances to our partners about our love for them and our shared plans for the future. In hindsight, these conversations are often interpreted differently. For example, ‘I vaguely remember saying this was to be your home for life before you moved to live with me. But that was ages ago and I remember a few months ago you said you knew it was my house and you have no right to stay here’. When it comes to their day in court people will almost always have conflicting recollections about what was said between them and which conversations actually mattered.
If the couple end up in court, at the court’s findings about these frequently vague and historic recollections will determine the very uncertain outcome of litigation between them. It all too often comes down to the performance of the witness on the stand; a terrible way to decide something which could have been agreed in better times.
In court cases between the unmarried, where there has been no clarity or agreement, the present law requires detailed (and costly) examination of past dealings between the parties. Ironically, this defeats the very object that motivates many cohabiting couples who reject the idea of marriage - ‘Let’s keep it simple by staying unmarried’.
Whether we choose to confront these difficult issues or not, as time passes in any relationship, financial security becomes ever more important. It must be helpful for unmarried partners to be clear about what will happen if their relationship ends or on the death of one of them. This allays anxiety about the future or suspicion and misunderstanding about the other’s intentions. Fairness avoids dispute, but so too does clarity. In some respects, clarity is most important, because it helps us to make the right decision about our future. If someone is wondering whether their relationship will last or whether to have a child with their partner, clarity about the financial arrangements between them will help them to make the right decision, not only for themselves, but also for their partner and (ultimately) any children.
At the end of the day, if the answer is that one unmarried partner doesn’t want to share assets with the other, even though they are expecting their partner to make sacrifices for the relationship (by, for example, giving up job opportunities for children or supporting their partner’s business), then the disadvantaged partner commits at their own risk.
We lawyers strongly advocate discussions about these issues between unmarried partners. Granted, it is not a romantic proposition, but if you can reach an understanding, so much the better for all concerned. At least you won’t end up lining the lawyers’ pockets!
There are many different situations in which unmarried couples may want to understand their respective financial positions in their relationship:
- At the outset of the relationship (very sensible, but perhaps optimistic!);
- When deciding to buy property together;
- When planning or expecting a child;
- When going into business together;
- When one party is about to introduce capital (e.g. on inheritance);
- When illness strikes;
- When the relationship is ending or has ended
Living Together and the Law: A Guide to Cohabitation by David Cobern of The Family Law Company