In 2011, there were nearly three million unmarried cohabiting couples, with or without children, in the United Kingdom. Many of these may not be aware that if their relationship were to end, their legal position would be very different, depending on whether the couple lived in Scotland or in England and Wales.
Many people wrongly believe that if they have lived together for some time, they are in a ‘common law marriage’ and that this confers certain legal rights and obligations. In fact, this legal concept has never existed outside Scotland and unmarried cohabiting couples in England and Wales have no specific rights if their relationship breaks down.
By comparison, a concept of common law marriage existed in Scotland until 2006, when it was superseded by the Family Law (Scotland) Act 2006 (the Act), which gives one of a cohabiting couple the ability to apply to court for financial provision when the relationship has ended otherwise than by death.
This law was relied on by a Mrs Gow when her four-and-a-half-year cohabitation with a Mr Grant came to an end. Mrs Gow had sold her Edinburgh flat, with Mr Grant’s encouragement, after moving in with him. The couple were engaged and Mrs Gow had also, at Mr Grant’s request, given up her job as an audio typist. She claimed that, as a result, she had suffered economic disadvantage which entitled her to a financial award following the end of the relationship.
Mrs Gow’s application was successful and she was awarded £39,500, which largely represented the difference in the value of her flat at the time that she sold it and its value when the relationship ended. On appeal, the award was overturned but was reinstated after a further appeal to the Supreme Court.
In her judgment, Lady Hale criticised the shelving in September 2011 of a 2007 Law Commission report which proposed that a legal framework for cohabiting unmarried couples similar to that relied on by Mrs Gow should be introduced in England and Wales. She said, “The main lesson from this case…is that a remedy such as this is both practicable and fair.” She added, “It does not impose upon unmarried couples the responsibilities of marriage but redresses the [financial] gains and losses flowing from their relationship.”
Lady Hale concluded, “The Act has undoubtedly achieved a lot for Scottish cohabitants and their children. English and Welsh cohabitants and their children deserve no less.”