No progress for ‘common law’ couples post split

Same-sex couples can now marry, but there is still a huge injustice in the family law system. Richard Phillips of IBB explains.

The Marriage (Same Sex Couples) Act 2013, which came into force on 29 March, allows same-sex couples to marry. This is very welcome (though it does not alter their legal status on separation or death if they were in a civil partnership) and an important step forward for society.

However, there is still a huge injustice in the family law system. Couples (same-sex and heterosexual) who are not married or in a civil partnership (only open to same-sex couples) do not have anything like the same protection in law on separation. An unmarried couple could live together for 30 years but there is no potential claim for maintenance for the financially weaker party unless it is for their children, and this can be limited.

The ’stay-at-home’ mother or father can make no capital claims themselves either and can be forced to leave their home of many years. If they made no financial contribution to the purchase of the family home in the name of the other party or subsequent payment towards any mortgage or capital improvements to the house, it is very difficult to establish a beneficial interest in the property. They then have to try and use the complicated laws of trusts or proprietary estoppel to base any claim.

Many family lawyers have had to give difficult advice to clients who believe they have ’common law’ rights only to be told it is very likely they will have to leave their home. Whilst developing case law has tried to bend the strict principles of property and trust law to see that “fairness “ is done, many people still fall through the net.

This comes at a time when more and more couples are living together and not getting married. The Office for National Statistics shows that the number of people in England and Wales living with a partner outside marriage has risen by 25 per cent in the last decade. In 2011, it was estimated 5.3 million people lived together up from four million a decade earlier.

In 2007, a Law Commission report looked at the financial consequences of relationship breakdown amongst unmarried couples. In short, they recommended that the court should be given a discretion structured by principles. Really it was three quarters of the way down the path towards the wide discretionary powers exercised by the divorce courts, which consider all the circumstances and do what is fair.

The recommendations have not been implemented nor is there any sign they will happen anytime soon. The focus seems very much on the recent Law Commission’s report ’Matrimonial Property, Needs and Agreement’, which includes a draft bill that would make prenuptial agreements binding.

However, they are already given significant weight by the divorce courts. Why is no progress being made to protect the millions of unmarried adults and their children who are suffering financially every year following separation?

Richard Phillips, head of the family team, IBB