The myth of common-law marriage has been problematic for lawmakers in England and Wales for several decades. This is the mistaken belief that living with a partner for a certain period confers legal rights on couples over finances and property as if they were married. Associate Ben Connor explains why politicians including shadow attorney general Emily Thornberry are championing this issue, and what proposed changes would mean for couples.

The gulf between public perception and the reality of common law marriage is an issue that has come under increased scrutiny in recent years as a result of the sharp rise in couples opting to live together – cohabit – rather than marry or enter a civil partnership. Many professional organisations involved with families have long demanded the reform of what many believe to be an outdated area of law.

That debate was placed back in the spotlight at the recent Labour Party conference by Ms Thornberry, who highlighted the plight of women in particular: “No woman should be forced to get married or stay in an unhappy relationship just to avoid ending up on the street.”

Challenging inequality

While these are strong words, there are valid concerns that the law has failed to keep pace with deep-rooted changes in UK society. This has had an overwhelmingly harmful impact on adults and children alike. The lack of protection for cohabiting couples favour the more financially secure on the breakdown of the relationship, typically men. This leaves (usually) women and children vulnerable following separation.

Although not a hard and fast rule, it is more likely that women will become financially dependent on their cohabitant partner where they have decided (often mutually with their partner) to sacrifice their earning capacity to stay at home and raise their children. Claims can be made for financial provision under the Children Act 1989 for unmarried couples with children, but the law does not recognise the contribution of a homemaker in a cohabitant relationship. In the event of separation, they suffer financial injustice as a result.

The proposals

It remains to be seen exactly how the Labour Party intends to modify the law for cohabitants in England and Wales. However, a clear commitment to change represents a significant shift from the current government’s repeated reluctance to engage with legal reform for unmarried couples.

Emily Thornberry cited the regimes in New Zealand, Scotland and Ireland in her party’s pledge to make legislative improvements in this area of law. Implementing a form of common-law marriage for unmarried couples or a ‘de facto’ relationship status would promote a safety net and greater legal protection for the financially weaker party.

Obstacles to reform

Resistance to cohabitation reform has typically been based on fears that new laws will undermine marriage, imposing rights on couples that do not want them or, simply, that such a scheme would be too difficult to operate. Sir Paul Coleridge, a former High Court judge, speaking after the Labour Party’s announcement said the plans would cause legal chaos and be “incredibly anti-libertarian”. He said the number of women left in a vulnerable position involved an “infinitesimally small number” of cases and that the proposed changes would represent a huge extension of the state into people’s private lives.

This is not a wholly convincing argument. No proposal to date regarding the reform of cohabitation law in England and Wales has called for cohabitants to be treated identically to married people. The calls for change are not about dissolving the distinction between cohabitants and spouses. Rather, they have been motivated by the desire to create a legal safety net for couples who would be exposed to financial hardship if they separate.

The outlook for cohabitation reform

Partner Matthew Humphries says: “Introducing new laws that enable fair outcomes while being sympathetic to the fact that cohabitation is not the same as marriage would seem to be the legislative sweet spot for any UK government aiming to bring the law up to date in this area. Such changes have already been made in other countries. There is a path to be trodden in this area that a prospective Labour government will likely closely examine when implementing legislative changes.”