For many years women have been under the impression that, after a certain amount of time in a cohabiting relationship, they accrue rights as a result of a "common law marriage". These include rights to a share of their partner's assets as well as on-going financial support following separation. This, unfortunately, is a complete myth.
At least up until this week, when the Supreme Court took a huge step in the direction towards recognising that the rights of long term unmarried couples should be commensurate with the rights of married couples; at least in relation to the receipt of state benefits for their children.
On Thursday Siobhan McLaughlin, mother of 4 children with her long-term partner, John Adams, won her appeal against the decision of the Court of Appeal that she was not entitled to widowed parent benefits following the death of her partner of 23 years. Baroness Hale, delivering the lead judgment on behalf of the Supreme Court, declared the current law "incompatible" with Human Rights legislation, making the point that whether parents are married or not their responsibilities towards their children is the same. Accordingly, Ms McLaughlin should be entitled to the benefits as if she were married.
Whilst this is undoubtedly a positive step for the rights of unmarried couples, especially in cases of bereavement such as this one, it does beg the question with regard to unmarried couples' rights following separation - does this case provide less clarity rather than more?
Consider, if you will, an unmarried couple splitting up after having lived together for 10 years. Unlike the case of Siobhan McLaughlin they have no children (the court will consider children's financial needs following separation separately irrespective of their parent's marital status), they have intermingled their assets throughout the course of the relationship, including buying a house together.
Based upon this recent Supreme Court decision, in which the court clearly recognises the rights of an unmarried couple to receive benefits previously reserved for those in marriages, one would expect the separation of such an unmarried couple to give rise to an entitlement to share in the "family" assets, for example.
In fact, under the law in England and Wales as it currently stands, such a couple would have no rights whatsoever to the assets or income of the other party following separation. Property would be divided in accordance with the strict legal ownership, regardless of the respective contribution of the parties. So if one party puts the house into his sole name, even though his partner may contribute to the majority of the household outgoings over the next 10 years, she will be entitled to absolutely no share of the property following their split.
It is, therefore, vital to highlight that this recent drive by the courts in England and Wales to recognise the rights of unmarried couples on death does not extend to recognition of their rights on separation. Yet, this ruling is the latest in a growing number of steps taken by the courts to extend the rights of unmarried couples as much as current legislation will allow. For example in January this year, the Court of Appeal ordered unmarried Jakki Smith bereavement damages (a fixed amount paid to the spouse or civil partner of a person who dies following medical negligence) despite earlier court rulings that she should not be entitled to such award as she was unmarried following the death of her long-term partner John Bulloch.
These recent rulings are inevitably leading some to question whether this is part of a continued erosion of the inviolability of marriage. Alternatively, is this a case of the courts having to create - rather than simply to clarify - the law because of a vacuum of legislative clarity being provided by parliament, in spite of the persistent calls for such reform by the family law community over many years.
The Supreme Court indicated in this case that it was now up to government to decide whether or how to change the law in this area. Surely it must now be time for parliament finally to take this issue in hand and consider whether it is now time to give unmarried couples, and the children of such relationships, the proper recognition and protection that they deserve?
This article was was published on The Telegraph website on 31 August 2018.