Costing commitment

In emotional terms, I should support the Law Commission’s new study that considers how cohabitees can be legally protected after a break-up (1). I’ve lived on and off with a man for six years and then another for nearly a decade. I didn’t get any money when the relationships ended, not even a chat about money. Damn!

But to be fair, neither did they. The uncomplicated financial endings seemed strangely unnerving at the time – weren’t we supposed to fight over the material remnants of our relationship like aggrieved married people? Didn’t they owe me something? But they shouldn’t be forced to pay me for being their girlfriend, and I shouldn’t be forced to pay them for the role they played in my life. If we had wanted to be obligated to each other in the eyes of the law, we probably would have got married.

The rising number of cohabitees, projected to increase from two million to 3.8million by 2031, makes some people nervous (2). But the implications of a law that could give rights to cohabitees following a break-up would be far more destablising to relationships than the fact that some people don’t get hitched.

Such a law would undermine choice for both sexes. People in casual relationships would be treated similarly to married couples without their consent. Cohabitees, let’s not forget, have not opted for marriage, with all the rights and responsibilities that involves; and even same-sex couples now have a choice to register as partners under the Civil Partnership Act 2004. So who would a cohabitation law be for?

Perhaps it’s easy for me to dismiss the idea of safeguards for live-in couples. I have my own home and savings. It’s not people like me that reformers may protect but those with ‘financial hardship’ says Stuart Bridge, the Law Commissioner for England and Wales.

Yet when I asked a less well-off friend about cohabitees’ rights, she opposed the idea too. Gemma*, 41, is a single mum living in a council house with her long-term boyfriend. Although he earns £23,000 per annum, she has no earned income or savings. ‘I like my independence. I’d leave with what I walked in with’, she says. ‘I don’t want to feel that I went out with a man because he was richer than me.’

What happens if he left you at 50? ‘I wouldn’t want somebody saying I had rights over his wealth’, she replies. ‘It should come down to the individual, otherwise a lot of people will try and scam the person they’re living with. Or they’d get his money for revenge. How’s a new law going to deal with that?’

Granting cohabitees rights to a share of the property might encourage people to live alone. Not everyone wants legal handcuffs hanging over a relationship.

Scott Rudmann, 35, founder of a London-based private equity company, cohabited with his girlfriend for a year-and-a-half before she moved out. ‘We didn’t want to get married’, he says. ‘We moved in together for fun and companionship. I’m thankful she didn’t have any legal rights over my property and business. A legal case when we separated would have been totally ridiculous and unjustified.’

However, he adds, ‘I think it’s different for couples who spend five or 10 years together helping each other’s career, bring up children and who are de facto married. Their case should be an exception.’

When children are involved, there clearly is an issue regarding financial support of the main carer. But under existing law, the biological parents are already responsible for paying maintenance, through the Child Support Agency, whether the couple is living together or not. As far as childless cohabitees go, the law is a blunt instrument. Where do you draw the line? I feel sorry for those left with nothing. Yet enforcing a legal obligation on cohabiting couples implies that they need judicial help to get their partner to commit.

Although the sexes are becoming more equal, individuals in relationships are told they need more help as if their lives are getting worse. For example, the legal advice website AdviceNow, which is part of the LivingTogether campaign funded by the Department for Constitutional Affairs (3), says that people like me need their new booklet called Breaking Up Checklist, launched in late June. It tells ex-cohabitees to work out who will deal with their debts, as if people don’t know whose name is on the TV hire agreement. AdviceNow’s self-appointed break-up experts suggest that separating couples should speed up the division of their financial arrangements as soon as they split. ‘Certain things will cause acute problems if they are not tackled at the time of the break-up’, AdviceNow’s Mary Webber said in June. But what of those couples whose love life is messy and who eventually…dare I say it…Get Back Together?

It’s assumed that cohabitees are ignorant of the facts. According to a 2000 British Social Attitudes Survey, 59 per cent of people thought cohabitees had common law marriage rights. But who knows a friend who’s just been through a common law divorce? Nobody. It never happens because such rights were abolished in 1753! (4)

What respondents to this question probably mean is that they think their partner has some kind of obligation to them. And in fact, this is true. Cohabitees might be surprised to know they have a lot of rights including those of occupation (The Family Law Act 1996); an arguable share in a property if they’ve paid mortgage installments (Trust Law); they can add their name to a mortgage deed, devise their own live-in contract, are treated as spouses by the Department for Social Security; and, with children, can receive Working Family Tax Credit. And then there are obligations arising from a sense of fairness and enduring love. I’ve known plenty of wealthy cohabitees who have helped their ex-partners – we just don’t hear about these stories.

If there’s no capital to share, then the whole issue is redundant. For most cases there’s a difference in wealth between couples, even if it’s the IKEA wicker chair they’re arguing over rather than who owns the St Tropez beach house. But people have messy lives and it’s not always easy to fathom who sacrificed what for whom when there’s no legal agreement, never mind when one is enforced upon them. And what of ‘bone buddies’ – flatmates who occasionally sleep with each other? Are they owed a bottle of Sainsbury’s red wine or half the futon?

‘Forcing adults to be financially reliant on each other gnaws away at people’s independence and undermines intimate relationships’, says Helen Reece, lecturer in law at Birkbeck University and author of Divorcing Responsibility (5). ‘If somebody is less well off we should be discussing how society can boost everybody’s wealth, not scapegoating the person they used to live with. Don’t we want equality for the less well off rather than giving them a handout from somebody else’s equity?’

Perhaps reformers believe that tough cohabitation laws will stop people breaking up, putting pressure on the provision of homes for single people. The Office of National Statistics predicts that 40 per cent of us will be living alone by 2020. But whatever the imagined fears and real problems about live-in relationships, people shouldn’t be forced to be legally bound to each other.

Perhaps it’s true that former live-in lovers are less caring for each other these days. Single life can be brutal. Nevertheless you can’t legally engineer a committed relationship – it’s never the real thing. Couples should be free to care for each other in the way they want, and not financially tied to each other without saying ‘I do’.

Tessa Mayes is a journalist and author.

* Name has been changed.

(1) Law Commission’s Cohabitation project launched on 18 July 2005. It is to be published as a consultation paper in early 2006

(2) According to figures from the Government Actuary’s Department, the numbers of married men and women are predicted to fall below 50 per cent of the population within six years. By 2031 the number of couples living together outside marriage is expected to nearly double, from 2 million to 3.8 million. Quoted in Unmarried couples in line for divorce rights, Clare Dyer, Guardian, 14 March 2005

(3) Advicenow is a public service produced by Advice Services Alliance, the coordinating body for independent advice services in the UK

(4) The history of common law marriage (.pdf)

(5) Divorcing Responsibility, Helen Reece, Hart Publishing, 2003