When A Duet Is Just Two Solos

Contrary to some recent press reports following the much publicised split between Mick Jagger and Jerry Hall, there is a significant difference under UK law between the claims of a married spouse and those of an unmarried partner on the breakdown of their relationship.

Despite the widespread popular belief in the notion of "common-law marriages", cohabiting for a period does not in itself give rise to any financial and property rights. Indeed the term "common-law marriage" is not one recognised by the Law. Some people believe that the phrase in fact refers to some ancient maritime ceremony of marriage at sea rather than the cohabitation of an unmarried couple.

Since 1981 the number of unmarried women between the age of 18 and 49 who cohabit has doubled. Many people believe that UK law has not responded adequately to this change in social trend.

In any kind of relationship there are many issues to be considered when that relationship breaks down or one of the parties dies but the most important usually relate to the consequences concerning children and finances.

Equality of parental rights does not apply in respect of a child whose parents were not married to each other at the time of his birth. This means that whilst a married father has all the rights, duties, powers, responsibilities and authority relating to his child an unmarried father does not.

This lack of equality can lead to some anomalies. For example, an unmarried father without parental responsibility would not be able to provide the necessary consent for his child’s medical treatment even if he enjoyed a stable and permanent relationship with the child and mother.

An unmarried father would have to apply to the Court to acquire that parental responsibility if the mother was not prepared to enter into a legally binding agreement with him voluntarily. On making that application to the Court an unmarried father will have to give his reasons for wanting Parental Responsibility and prove to a Judge that he is committed and attached to the child. A married father, even if he separated from the mother prior to the child’s birth, would not have to meet this standard.

Notwithstanding the length of the cohabitation unmarried couples do not have the same rights that apply on marriage breakdown. Judge’s do not have the adjustive remedies which they can use in divorce to create fairness when taking into account all the circumstances of the case.

With regard to housing, unless a property is held in joint names, the cohabitee will normally have to show some direct financial contribution to the acquisition of the property before acquiring an interest in the home. This can be a course of hardship to a (typically) female cohabitee whose non-financial contribution in terms of homemaking and child rearing goes unrecognised.

A child is always entitled to be maintained whether his parents are married or not. However, unlike a married couple where financial support can be claimed from a spouse in the form of maintenance payments, a lump sum and a share of pension, the cohabitee has no such claims whatsoever.

Again, this can lead to considerable injustice where one party has perhaps given up a job or valuable tenancy, maybe at the behest of the other. When the relationship breaks down that cohabitee can be left homeless and unemployed with no remedy. In law no account is taken of the relevance of the relationship itself.

An area where matters have improved for the unmarried family is in relation to inheritance. On the death of a parent the childs entitlement and claims are the same whether his parents were married or not. Similarly, a cohabitant, who has not received reasonable provision under his late partners will can now apply for this to be reviewed provided they had been living in the same household for two years immediately before the date of death. However, despite this improvement a cohabitant is still not entitled to the higher standard of provision which a married spouse can claim.

Should the law recognise a stable and permanent bond between two people who want to formalise their relationship? Notwithstanding the political and moral arguments concerning the status of marriage, many countries do now recognise cohabiting relationships. In Australia for example, the De Facto Relationship Act makes provision for unmarried couples and in Scandinavia unmarried partners can register their relationship to acquire legal status. In the UK at present the outcome of cohabitation disputes is often unfair, uncertain and illogical. It would seem that a reform of the law is urgently required.