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Family Law

The leading authority on all aspects of family law

05 FEB 2010

The Financial Rights of Cohabiting Couples

JUDITH BRAY, Senior Lecturer in Law, University of Buckingham

Historically, the traditional marriage vow 'with all my earthly goods I thee endow', had only limited truth. As the ring was slipped over the finger, the new wife did not instantly acquire a share in any property owned by the husband. Rather the reverse, until the Married Women's Property Act 1882 it was the husband who acquired the property of the wife.

However, much has changed over the last decade. Building on the statutory protection under the Matrimonial Causes Act 1973, the trend in recent cases has been towards genuine equality in the sharing of matrimonial assets between the parties on the breakdown of marriage.

In recent years there has been a sharp decline in the number of couples entering into marriage and an increase in the number of couples who now enter into cohabitation so the numbers affected by the change in approach to financial provision on divorce are declining. Where cohabitation breaks down there is no statutory regime of sharing assets of the relationship. A cohabitant can make a claim based on the principles of property law by establishing rights under an implied trust but there is no right based on the relationship itself. This stark contrast between the rights arising from marriage and those arising from cohabitation is somewhat surprising in view of the time and resources spent over the past 14 years by the Law Commission considering the rights of unmarried cohabitants.

To read the rest of this article, see December [2009] Family Law journal.

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