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Wed 25th April 2007
The House of Lords' Judgment for cohabiting couples

Around 4 million people cohabit in England and Wales, representing an increase of 67% in ten years, and around three-eighths have a child or children. One in six opposite-sex couples cohabit without marrying but by 2031 that figure is expected to rise to one in four.

On 25th April 2007, the House of Lords handed down its judgment in Stack –v- Dowden, a case about the property rights of an unmarried cohabiting couple in a house in which they lived together until the breakdown of their relationship. The case establishes a new framework within which future cases about cohabitants' rights are to be decided, which it is suggested will lead to greater certainty and simplicity.

What is the current law regarding unmarried couples?

It is a common misconception that there is such a thing as "common law marriage" which bestows upon the unmarried rights akin to their married counterparts. In fact this is not so, regardless of the length of the relationship, and many unmarried couples only discover this when the relationship comes to an end.

Most of the reported cases concerning separating cohabitants relate to the ownership of the home in which they lived together. The current law places particular emphasis on direct financial contributions to the acquisition of the property and in the absence of any agreement between the parties, a share in the property is likely to be acquired only on proof of financial contributions by way of payment of a capital sum (such as a deposit) or of mortgage instalments.

In the judgment are references to the need for new legislation to resolve the issues which arise in this type of case. Lord Hope laments the fact that the problem surrounding establishing the property rights of a cohabiting couple on separation has not been solved by legislation, pointing out that the legislation which applies to divorcing couples does not apply to the unmarried. Equally, he is clear that it is not for the Courts to try to resolve these difficulties on a piecemeal, case by case basis.