Cohabitation – time for change?

14 Jun 2013

Reports in the media suggest marriage rates are on the decline.  Does that mean that less people are forming relationships? No, it simply means that the family dynamic is changing.  It is now far more socially acceptable for people to live together, even have children with each other, outside the institution of marriage.  Unfortunately the law governing the breakdown of such relationships, and the subsequent division of assets resulting from such breakdown, has not evolved to reflect the change.

The trend towards cohabitation is not a new 21st century development, neither are the issues faced by the Court when the relationship breaks down.

In the case of Burns v Burns [1984] a man and women cohabited for 20 years, brought up children, she changed her surname to his and looked after his home.  When that relationship broke down, she was entitled to nothing.  Lord Justice May stated “I think that she can justifiably say that fate has not been kind to her.  In my opinion, however, remedy for any inequity she has sustained is a matter for Parliament and not for the Court”.

It was hoped that we may see a glimmer of fairness with the publication of the Law Commission’s report “Cohabitation: The Financial Consequences of Relationship Breakdown” in July 2007.

The report acknowledged that cohabitation was already a significant social practice, that current legislation was inadequate resulting in unwelcome consequences and that these were not issues that were going to simply go away.  The Law Commission urged the Government to take necessary steps to provide this increasingly significant section of society with legal remedies capable of dealing fairly with the financial consequences should they separate.  Reform was required.

Regardless of the support for the suggested reforms, the then Labour Government did nothing.  The subsequent Coalition Government show no greater signs of enthusiasm and merely state that the family justice system is in a transitional period with major reforms already on the horizon.

In the absence of any reform and with it guidance from Parliament on the consequences of cohabitee relationship breakdown, a modern day Ms Burns still has to resort to outdated property and trust law.