The Labour Party proposals on common law marriage

At the Labour Party conference proposals were made to change the law concerning unmarried couples and specifically to introduce legislation along the lines of common law marriage, should the Party be elected at the next general election.

The stated aim is to provide protection for the increasing numbers of unmarried cohabiting couples on separation after a serious relationship of a number of years.

Inspiration seems to have been taken from the position in Australia where de facto relationships, which have much the same protections in terms of division of property as marriage, have been recognised since the introduction of the Family Law Act 1975.

Current position in England and Wales

The current legal position regarding the breakdown of non-marital relationships is notoriously complex even for a significant number of lawyers specialising in family law, never mind the general public. A comparison to the position relating to marriage is useful to understand the current differences that exist in UK law. 

Marriage

This is in significant contrast to the position on the breakdown of a marriage which appears to be much more clearly understood by the public given its relatively simple starting point of an equal division of matrimonial assets no matter in which parties’ name they are held. This will include an entitlement to share in property, savings and investments, and pensions. There is also the possibility of spousal maintenance should sufficient need be shown.

Non-marital relationship

As things currently stand, upon the breakdown of a non-marital relationship there is no automatic entitlement to share any asset which is not held in the joint names of the parties.

In terms of assets held in the sole name of one of the parties there is the possibility to try to establish a beneficial interest in what could be called the former family home, and potentially, although more remote, any other properties that may be owned by the parties, although this is much more difficult and if established does not guarantee an equal share. There are also significant financial consequences should a party not be successful.

No pension sharing will take place and the only sharing of savings or investments will be of assets that are held in joint names. Significantly, there is also no apportionment relating to debt that may have been accumulated by the parties.

Why is the Labour Party advocating for reform?

In short, because fewer and fewer people are getting married. By 2019, according to the ONS, there had been an almost 50% drop in the numbers of people getting married each year since their peak in 1972 and so the law needs to reflect those changes in society. Many of these people feel that they are essentially married and their relationships have all of the characteristics of a marriage, just without having the formal ceremony. Upon the breakdown of these often long and significant relationships parties can be left in polar financial positions with many people being left with almost nothing. 

Australia 

Australia has recognised ‘de facto relationships’ since the introduction of the Family Law Act 1975.

These are recognised by law when:

“Two people are in a relationship and are not married but live together as a couple on a genuine domestic basis. This includes adults of any sex or gender identity. It is not enough just to live in the same house, or even to sleep in the same bed. To have a recognised relationship you must both intend to live together as a couple.”

De facto relationships provide the parties with many of the same rights in respect of property as marriage. If the following criteria apply then a claim for property or maintenance can be made within years of the relationship ending:

• the relationship was registered or existed for at least two years; or
• there is a child of the relationship; or
• serious injustice would result if an order was not made.

Property disputes are dealt with by the Family Court of Australia under the same principles as for married couples.

Conclusion

Such a change to the law modelled on the Australian system would likely bring significant benefits and more certainty to outcomes when relationships break down. Balanced against this is the argument that people should have the choice as to whether to ‘marry’ or not. Safeguards such as the need to cohabit for at least two years should go a long way to avoiding any potential injustice as only cohabiting relationships of a significant length would be included.