First published on LexisPSL’
Family analysis: In the first of a three-part series, the legal rights of unmarried couples are analysed in relation to benefits and inheritance. Emily Brand, partner at Boodle Hatfield, considers the ‘archaic’ nature of the law, and the Supreme Court’s decision to award an unmarried woman access to bereavement allowance after the death of her partner.
What rights are currently unavailable to unmarried couples, which are available to spouses and civil partners?
Unlike civil partnerships, none of the rights available to married couples are available by default to unmarried couples, regardless of the length of the relationship and any periods of cohabitation. The ‘common law marriage’ is a myth—unmarried couples do not benefit from the various protections offered by the family courts. At best, they will have claims for maintenance and capital for children (but only during their dependency), and possible claims under the Law of Property Act 1925 if they own property.
In broad terms, married couples will be treated automatically as a family unit. This means that spouses can seek to share in their partners’ pensions and life insurance policies and be provided for upon the death of their partner. Divorcing spouses can be assured of ‘fair’ financial provision being made for them by way of the Matrimonial Causes Act 1973 (MCA 1973), with the usual starting point being that both parties have a 50% interest in the former matrimonial home regardless of whose name is on the title deeds.
In addition, all other assets owned by either party to the marriage are available to be redistributed between the former couple depending on the discretion of a judge seeking to achieve fairness between the parties. The judge will take into account their specific circumstances including (but not limited to) the length of the marriage, their respective ages and their needs.
By contrast, the legal approach to unmarried couples is far less cohesive, and the position of an unmarried partner can be highly precarious in comparison to their married equivalent. There is essentially a much more ‘business-like’ approach taken by the courts to unmarried couples and their families. The financial arrangements after the separation of unmarried couples are dealt with on an ‘issue by issue’ basis.
Property claims are covered by the law on trusts and property—the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996)—and can be dealt with by the civil courts, rather than the family courts. Whether the unmarried partner is able to bring a successful claim will depend firstly on the legal ownership of the property and, failing that, on issues such as establishing the monetary value of contributions by either party. In contrast to a married couple or civil partners, non-financial contributions such as caring for children are of no relevance whatsoever.
Financial claims relating to children must be brought under statutory child maintenance provisions or Schedule 1 to the Children Act 1989 (ChA 1989). There are essentially no provisions allowing for the
ongoing financial support of an unmarried partner by the other following separation regardless of whether one has sacrificed their career to care for the children.
Pensions and intestacy rules
Unlike married couples, cohabiting couples do not have an automatic right to benefit from their partner’s pension, unless they are named formally as a ‘nominated beneficiary’.
Likewise following the death of an unmarried partner, the surviving partner would not benefit from their deceased partner’s estate at all under the intestacy rules. Instead, there are heightened legal requirements placed on surviving unmarried partners. In order to make a claim on the estate of their late partner, they would have to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This requires that the couple must have been either ‘living as husband and wife’ for a period of two years prior to the date of death of one of them, or that the surviving partner must have been ‘maintained by’ or financially ‘dependent on’ the deceased and there has been no proper provision for them in the will. It is of course open for unmarried couples to make provision for one another in their respective wills. However, this emphasises the contractual nature of arrangements that must be made for unmarried couples, in contrast to married couples who can simply rely on the fact of their relationship for the law to provide them with adequate redress, even in the event of intestacy.
Precisely because of the unequal treatment shown by the discrepancies highlighted above, there is a rising tide of public and professional pressure being applied to equalise the legal protections offered to committed, cohabiting couples. This is in order to reflect modern norms where increasingly couples are simply preferring not to get married. Nonetheless, the law as it stands remains entrenched and provides married couples with more protection than their unmarried counterparts.
How does the current law impact families where the parents are unmarried?
When it comes to children, there is a fundamental difference between unmarried fathers and married ones. A father who is married to the mother of his child automatically has parental responsibility. Parental responsibility gives a parent the opportunity to participate in important decisions concerning the welfare and upbringing of their children. In contrast, an unmarried father only acquires parental responsibility if:
• the mother agrees to him having his name on the child’s birth certificate
• there is subsequent agreement between them
• the court provides for him to have parental responsibility by way of an order
Further, in the event of the death of an unmarried and intestate parent, a biological child can inherit under the rules of intestacy (ie where there is no will) but the surviving unmarried partner cannot. It is therefore of the utmost importance for unmarried partners to actively engage with estate planning as provision can be made by way of the wills of each partner which will circumvent the unfairness caused by the application of the intestacy rules. They are such that if a parent were to die intestate, this could leave the unmarried parent penniless with a minor child inheriting all of their parent’s property.
In the event of relationship breakdown, the treatment of biological children of unmarried parents is reasonably similar to those of married parents, albeit that claims are pursued under different legal bases— children of unmarried parents are provided for in ChA 1989, Sch 1, rather than the MCA 1973 which
provides for children of married parents. Ultimately both biological parents remain responsible for their child, whether or not they are married—this continues regardless of any separation. In financial terms, the Child Maintenance Service can be used to calculate the financial contribution of the parent who does not live with the child (calculated by reference to that parent’s income, up to a maximum figure per week) by way of child support to the other. It would also be expected that both married and unmarried parents would try to agree arrangements consensually for their child to cover both financial responsibility and to regulate the time that both parties spend with their children following separation.
However, as indicated above the provision made for an unmarried partner upon separation differs vastly from the provision made for married couples upon divorce. Hence, although financial provision can be obtained for the child of unmarried parents in the form of child maintenance, there is no equivalent to spousal maintenance for unmarried former partners and only nominal provision is available to these parents even if they are caring for a dependent child. No ongoing financial provision is made for the benefit of the unmarried partner themselves, and this can cause significant hardship to some separating unmarried parties and their families.
Unmarried cohabiting couples would therefore be wise to formalise their position in relation to their finances and regularly review whether the provisions accurately reflect the arrangements during the relationship. For instance, property arrangements can be set out in a cohabitation agreement, which will usually take the form of a deed to avoid any issues regarding ‘lack of consideration’ for the contract. This agreement can protect the rights of either party in the event of relationship breakdown, and prevent the need to bring legal claims relying on the laws of trusts and TOLATA 1996 which may ultimately provide awards that do not reflect the reality of the living arrangements at the time of the relationship.
Similarly, while unmarried partners do not have an automatic claim to the benefit of their partner’s pensions (as their married counterparts do), provision can be made simply by nominating their partner as a beneficiary of any pension.
Likewise, unmarried partners should ensure they provide for one another in their wills, and consider naming each other on their bank accounts so that their partner can access them in the event of their death.
What impact will the Supreme Court’s decision (In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)) have on future benefits cases with unmarried couples?
There is, rightly, significant public interest in these issues. For a number of years there has been considerable pressure applied on the government by the legal profession in an attempt to ensure the modernisation of the law relating to cohabiting couples by bringing it in line with the provisions made for married couples. Year by year this becomes increasingly important as large numbers of couples are choosing not to get married, and are therefore falling within this grey area of the law. Unfortunately to date there has been no such change in the law.
In In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland),  UKSC 48,  All ER (D) 144 (Aug), the UK Supreme Court made a declaration of incompatibility between section 39A of the Social Security Contributions and Benefits Act 1992 (SSCBA 1992) and Article 14 of the European Convention on Human Rights (ECHR), when read in conjunction with Article 8 of the ECHR. It was held that it was not compatible with the ECHR to deny a widowed parent’s allowance that was granted to parents who were spouses (or civil partners), from being claimed by widowed parents who
were cohabitants, purely by reason of their unmarried status. However, as always, these cases are highly fact-specific and limited in application to SSCBA 1992. Similar provisions in England and Wales relating to a widowed parent’s allowance were expressly excluded from the scope of this judgment. In any event, as this is a declaration of incompatibility, there will not be any automatic change in the law as a result of this case. We therefore await revised legislation from Parliament.
Of course, now this argument has succeeded before the Supreme Court, it seems likely that provisions which grant benefits to partners simply by virtue of their marriage (or civil partnership) will be vulnerable to challenge in the future by cohabiting partners. It is surely fair to assume that we will see similar arguments relating to Article 14 of the ECHR being used by analogous litigants to contest any such provisions going forwards.
What changes would need to be made to give unmarried couples access to the same rights as married couples for pensions, benefits and inheritance? Are there any current plans in the pipeline to make these changes?
Many attempts have been made to introduce legislation progressing the rights of cohabiting couples in the past. None have succeeded thus far. At present there is a Cohabitation Rights Bill being passed through the House of Lords. In essence the Bill in its current draft attempts to regularise the position between married and unmarried couples. This encompasses the introduction of financial settlement orders in certain circumstances which (if made, would on the current draft of the Bill be determined on extremely similar principles to those applicable to married couples under MCA 1973), enables claims upon the death of their partner and introduces insurable interests in each other’s lives.
The proposed Bill also includes an ‘opt-out’ provision, in the event that the unmarried cohabiting couple does not want these provisions to apply to them. The Bill received its first reading in July 2017 and we await a second reading date to be announced. It seems likely that as government efforts are currently focused elsewhere, that it may be some considerable time before any such legislative changes are actually introduced.
Is there anything else you would like to add?
It may be that cohabiting couples hope that, by avoiding marriage or a civil partnership, they are freeing themselves from the constraints of the law. In fact, should things go wrong, they are more likely to become embroiled in the archaic laws of trust and property than their married counterparts who can rely on a more holistic approach to the needs of the family. It is unlikely that there will be the necessary reforms to the law soon, if ever, since there remains a strong body of thought that believes that if you wish to benefit from the legal protections offered to ‘married’ couples, you should either marry or enter into a civil partnership.
Interviewed by Samantha Gilbert.