Common law marriage is as much a myth as the Loch Ness Monster, the Tooth Fairy or the Coalition Government introducing tax breaks for married couples. It simply does not exist, and those couples who are in cohabitating relationships need to be aware that they have no” rights” to each other’s assets and properties should they end their relationship.
There are those that think there are automatic right for cohabitating couples, I’ve heard many differing “beliefs”, including that if a couple live together for a period of more than 2 years then they are deemed to be married in the eyes of the law, or that if a couple have lived together for more than 10 years , they are each entitled to half of the other’s assets – both are entirely wrong. When an unmarried couple separates, each party retains the assets which are in each of their names – irrespective of whether that is the family home or the family business. To contest this, the party whose interest has been undocumented will have to go through the struggle of establishing that there was a joint intention for them to have an interest, using the highly complex Trusts of Land and Appointment of Trustees Act 1996. The starting and usually finishing point is the person(s) named on the deeds is the owner. In some circumstances it’s possible to claim an interest in the property if there was an intention to share the property and beneficial interest can established. It is also possible for a parent to make claims for the benefit of children under Schedule 1 Children Act 1989 for a capital sum or property transfer. Any provision of capital reverts to the original owner when the child reaches 18 or 21 years of age.
The recent case of Paula Curran can not but invoke some degree of sympathy – Paula Curran and Brian Collins (both in their 50s) had been in a relationship for 30 years. Their home and valuable business, which they had run jointly, are owned in the sole name of Mr Collins. Ms Curran has nothing and applied to the Court for a share of these assets. The County Court judge ruled that Ms Curran is not entitled to share in either the home or the business. He felt compelled ignore his “human sympathies” and apply the law – which, in fairness to the judge, is his job. Ms Curran has now been allowed to appeal against the decision, as Lord Justice Toulson recognised that: “The law of property can be harsh on people, usually women, in that situation. Bluntly, the law remains unfair to people in the appellant’s position… ” In order for her appeal to be successful, Ms Curran will have to show that the couple originally intended for her to have a share in the property and business which was originally purchased for £750,000. I, for one, will be watching the outcome of this appeal with great interest.
I have written previously about the disparity in financial provision for former cohabitants in England/Wales and those in Scotland, and explained the financial provision for cohabitants in Scotland in previous blog postings. The provisions made under the Family Law (Scotland) Act 2006 give those cohabitants who’s relationship has ended some degree of financial recompense, and the recent case of Gow v Grant has also paved the way for those older cohabitants where one party is likely to have suffered a greater financial disadvantage by selling their home and at least a portion of their income. But there is a clear need for similar provision for cohabitants in England/Wales – the case of Paula Curran who is now left penniless, homeless and destitute only amplifies this need. With over 2.9 million people cohabitating in 2012 (ONS – Families and Households, 2012) – double the figure from 1996 – it is clear that more and more couples are choosing to cohabit, and cases like Paula Curran will increase in the coming years. The Government have no plans to change the current law, leaving Judges no option but to continue to be constrained to apply the law as it is. Instead the Government are focusing their efforts on a debate and Bill that will affect a very small percentage of the population, rather than bringing forth proposals that could change the law for almost 3 million people – and more in the coming years. With the perpetuation of the myth of common law marriage, there will still be many couples who will not be aware of how the law currently sits on cohabitation rights (or rather, the extreme lack of them), clearer information is required for those who choose to cohabit, and particularly when buying property together, estate agents and conveyancing solicitors should be explaining the legal positions to starry-eyed couples who buy a house together; that the law will assume that they each own an equal share should they split up and sell the house – regardless of how much each party puts into the property, and if only party’s name is going on the deeds, the implications of this for the unnamed party.
It is time to change the law on this issue, there are lessons to be learned from Scotland’s provision for cohabitants in the Family Law (Scotland) Act 2006 – lessons which England/Wales must take on board sooner rather than later – for many it is already too late.
There is no such thing as a common-law marriage in Scotland (or indeed in England/Wales), it is a myth and a fallacy. Couples who reside together in an intimate relationship are either married or co-habitating. The Family Law (Scotland) Act 2006 makes some financial provision and provides discretion to the court for both making of an award and the amount to be awarded when cohabitation has ended otherwise than by the death of one of the cohabitees, these are detailed below.
The Family Law (Scotland) Act 2006, provides a set of basic rights for cohabitants whose relationship ends covering:
- the sharing of household goods, bought during the time the couple lived together. This means that if you cannot agree about who owns any household goods, the law will assume that you both own it jointly and must share it or share what it is worth;
- an equal share in money derived from an allowance made by one or other of the couple for household expenses and/or any property bought out of that money. It is important to understand that this does not apply to the house that the couple live in;
- financial provision when, as a result of the decisions the couple made together during the relationship, one partner has been financially disadvantaged. This means, for example, if the couple decided that one partner would give up a career to look after their children, they can ask the court to look at the effect that decision had on that partner’s ability to earn money after the relationship has ended;
- an assumption that both parents will continue to share the cost of childcare if they had children together
The court would decide on how the property would be divided, but as I’ve said before, when co-habituating couples buy a house together, the law, as stated in s presumes they own it 50/50 (unless they have signed a prior agreement stating who owns what percentage of the house).
A co-habituating relationship is defined by characteristics that are common for husbands and wives – ie share mutual interests, share a social life, be economically inter-dependant and be regarded as a member of the other’s wider family. As the marital relationship is based upon sex, so living together as husband and wife requires that the couples’ relationship be, or at least have been at an earlier stage, sexually intimate. The fact you have a child together proves this last and important point.
Financial Provision for Co-Habitees
A co-habituating relationship is defined by characteristics that are common for husbands and wives – ie share mutual interests, share a social life, be economically inter-dependant and be regarded as a member of the other’s wider family. As the marital relationship is based upon sex, so living together as husband and wife requires that the couples’ relationship be, or at least have been at an earlier stage, sexually intimate. A child or children together would prove this last and important point.</p><p>
S28, (2) of the Family Law (Scotland) Act 2006 provides:
“on the application of a cohabitant (the applicant) the appropriate court may, after having regard to the matters in sub-section 3 – (a) make an order requiring the other cohabitant (the defender) to pay capital sum of an amount specified in the order to the applicant (b) make an order requiring the defender to pay such an amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents; (c) make such an interim order as it sees fit.”
Subsection 3 – those matters are:
“(a) whether 9and, if so to what extent) the defender has derived economic advantage from contributions made by the applicant; and (b) whether (and, if so, to what extend_ the applicant has suffered economic disadvantage in the interest of – the defender or to any relevant child.”
These sections provide a basic set of rights and are also what the Court would take into consideration when considering a claim for financial disadvantage, for co-habitees who end their relationship and co-habitation:
- the sharing of household goods, bought during the time the couple lived together. This means that if you cannot agree about who owns
- any household goods, the law will assume that you both own it jointly and must share it or share what it is worth;
- An equal share in money derived from an allowance made by one or other of the couple for household expenses and/or any property bought out of that money. It is important to understand that this does not apply to the house that the couple live in;
- Financial provision when, as a result of the decisions the couple made together during the relationship, one partner has been financially disadvantaged. This means, for example, if the couple decided that one partner would give up a career to look after their children, they can ask the court to look at the effect that decision had on that partner’s ability to earn money after the relationship has ended;
- An assumption that both parents will continue to share the cost of childcare if they had children together
Property which is in the name of one party only will remain in the sole ownership of that named party, while property that is jointly owned by the two parties (and where there is no Deed of Trust stating otherwise) is presumed, in law, that each party shall own an equal share of the property.
A claim for financial disadvantage under Section 28 of the Family Law Act (Scotland) 2006 must be made within 12 months of the relationship ending. Should the date of the ending of the co-habitation be disputed, then Court will require the matter to be proved. A pursuer’s entitlement to seek a capital sum from the defender would depend on if this is necessary to rebalance any contributions (ie mortgage payments) or disadvantages suffered for the benefit of the relationship or in order to share future child-care costs (if there are children from the relationship). The Court would decide if any advantage has been offset by any disadvantage, and could specify the amount of the Order, a date on which it should be paid, and if it should be paid as a lump sum or as instalments.
A recent case bought before the Supreme Court (Gow v Grant ) saw a successful application by Ms Gow for financial redress under the principle of “economic advantage, disadvantage or contribution”, usually it is younger former cohabitants with young children who would seek to redress the financial burden of financially providing for those children; however in the case of Gow v Grant, it provided a precedent for those more mature co-habitats, where one party is likely to have suffered a greater financial disadvantage by selling their home and at least a portion of their income.
(c) Ruth Langford
“One of society’s biggest problems today is that we’ve allowed relationships to be accepted as impermanent, particularly marriage”. ~ Anon
I am a firm believer in marriage, and the benefits it brings to spouses, their family unit, and society as a whole. Often, people will try to convince me that there is no difference between co-habitating and being married, and that a piece of paper doesn’t make a relationship stronger. The facts below demonstrate otherwise, and make clear the benefits of marriage. I will let those facts speak for themselves, and allow you to make your mind up as to whether a piece of paper does or doesn’t make a difference.
Cohabitation in Great Britain more often functions as a prelude to marriage or a trial marriage rather than a lasting alternative to marriage. Co-habitation suggests a temporary relationship and one that is lacking in commitment. The benefits and protections accruing to marriage are largely due to “commitment”. The long-term nature of commitment allows couples to risk specialising or letting go of domestic roles. This is an efficient arrangement in terms of time, stress and money. Commitment motivates couples to look out for one another, providing an explanation behind gains in health and wealth. Married couples also receive more social and financial support from both extended families. 
Cohabitees are far more likely to break-up than married couples. The median length of UK cohabitations is under 2 years. Just 4% of these last more than 10 years . 84% of UK cohabiting couples dissolve within 5 years. Unmarried parents are still 4-5 times more likely to break up than married parents  Within 5 years of the birth of a child, 8% of UK married couples have split up, compared to 52% of cohabitees, and 25% of those who marry after the birth .
Recent figures published by the ONS show that by 2010 the number of children in England and Wales born outside marriage had reached 338,790, This amounts to just under half (46.8%) of the 723,165 babies born that year. In 1971, 91.6% of births were within marriage
The number of opposite sex cohabiting couple families increased significantly, from 2.1 million in 2001 to 2.9 million in 2011. The number of dependent children living in opposite sex cohabiting couple families increased significantly, from 1.3 million to 1.8 million over the same period
There were 2.0 million lone parents with dependent children in the UK in 2011, a figure which has grown steadily but significantly from 1.7 million in 2001
The number of married couple families decreased by 262,000 between 2001 and 2011 to 12.0 million in 2011 – this was the only family type to have decreased during this time-period. Single parent families saw an increase with 2.0 million lone parents with dependent children in the UK in 2011, a figure which has grown significantly from 1.7 million in 2001. Lone parents with dependent children represented 26 per cent of all families with dependent children in 2011, an increase of two percentage points since 2001. Mothers make up 92% of lone parents. 
62 per cent of dependent children lived in a married couple family in 2011, a decrease from 68 per cent in 2001. Over the same period, the percentage of dependent children living in opposite sex cohabiting couple families increased by four percentage points to 14 per cent, and those living in lone parent families increased by two percentage points to 24 percent. 
The effects of Marriage on Children
Children born into married unions are estimated to be twice as likely as those born into cohabiting unions to spend their entire childhood with both natural parents (70 percent versus 36 percent). Only 8 percent of children born into a married household see their parents split before their
Fifth birthday, whereas 52 percent born into a cohabiting household see their parents split. Marrying after the birth is associated with a reduction in the risk of break-up—down to 25 percent.  In Britain, less than half of children in lone-mother families see their fathers once a week, and the percentage is even smaller where the father was never married to his child’s mother.
Twenty to thirty percent of non-resident fathers have not seen their children in the last year.
There is even growing evidence that remaining in an unhappy marriage might have less of a negative effect on father-child relationships than divorce In Britain, two-parent families are half as likely as lone mother families to live in poverty. Children living in lone-parent households were still 80 percent more likely to have health symptoms and illness such as pains, headaches, stomach aches, and feeling sick.
Children are safer:
Marriage protects children from abuse, while cohabitation increases the risk. Children are much safer being brought up in a home with a father in it; fathers play an important role in protecting their children from harm.
One UK study found that rates of serious child abuse were 6 times higher in stepfamilies, 14 times higher with mother alone, 20 times higher with biological parents cohabiting, 20 times higher with father alone, and 33 times higher with mother cohabiting, all compared to living with both biological parents married. Other US studies confirm this greater risk of abuse from a live-in non-parent at 6-40 times . The greater risk of an under two-year-old child being killed by a live-in non-parent is 3-100 times 
Consequences of divorce for children
Although a child’s emotional well-being can improve following divorce from a “high-conflict” marriage, the majority of divorces follow “low-conflict” marriages: these have the most damaging immediate effects on children . A landmark 25-year US study of 93 children of divorce found that the immediate trauma of divorce is less important than during the first ten years of adult life, when man-woman relationships come to centre stage . Adult children of divorce are 2-3 times more likely to cohabit and, if they do marry, are far more vulnerable to divorce, especially early in their marriage and the younger they were when their own parents divorced .
A UK longitudinal study of 8-32 year old males found that parental divorce before age 10 was a major predictor of later adolescent delinquency and adult criminality .
Children of cohabiting parents performed worse than pupils born to married couples in assessments including vocabulary, reading, and mathematics and making patterns at the ages of three, five and seven.
They were also significantly more likely to show signs of hyperactivity, lack of attention, and problems forming friendships with other children than pupils whose parents were married 
Benefits of marriage for adults/parents
Married couples report greater sexual satisfaction. The highest levels of sexual satisfaction were reported by individuals who were in married, monogamous relationships, while those who were single or cohabiting reported slightly lower levels of sexual satisfaction.
Married women report higher levels of physical and psychological health. Formerly married women reported the worst health while never married women fell between these two groups. Compared with unmarried women, married women had less job stress, environment stress, child stress, financial stress, and relationship stress. Health measures included self-rated health, distress level, chronic illness, and a number of stress types, ranging from social life stress to job strain.
Married men appear to have greater work commitment, less likelihood of resigning, and healthier and more stable personal routines (including sleep, diet and alcohol consumption). Husbands also benefit from both the work effort and emotional support that they receive from wives
Married men earn more money than do single men with similar education and job histories
Marriedmen make more money. Taking into consideration a number of factors including educational attainment, compared with unmarried peers, married men earned, on average, 20 percent more in wages.
Married people are more likely to volunteer. Compared to unmarried peers, married adults were1.3 times more likely to have volunteered for social services and averaged 1.4 times more volunteer hours.
Being married increases the likelihood of affluence. This association applied to all age groups.
Married people tend to experience less depression and fewer problems with alcohol. Men who married and stayed married tended to be less depressed than those who remained single. Among women, marriage was associated with fewer alcohol problems.
Getting married increases the probability of moving out of a poor residential area. Marriage nearly doubled the probability that a person would move from a poor to a non-poor residential area. Likewise, the dissolution of a marriage more than doubled the probability that a person would move from a non-poor to poor residential area. Among blacks, marital dissolution increased the likelihood of moving from a non-poor to a poor residential area almost six-fold.
Ever-married women are less likely to experience poverty. Compared to never-married peers, women who had ever been married were substantially less likely to be poor—regardless of race, family background, non-marital births, or education. Ever-married women have a poverty rate that was roughly one-third lower than the poverty rate of never-married women. Currently married women had an even lower probability of living in poverty—about two-thirds lower than other women.
Marriage is associated with a lower mortality risk. Compared to married individuals, those who have never been married had nearly twice the mortality risk. Divorced or separated individuals ran a mortality risk more than 50 percent higher than those who were married. The black-white mortality gap narrowed when marital status was taken into account.
Marriage is an important social good, associated with an impressively broad array of positive outcomes for children and adults alike.’ 
1 – The Case For Marriage by Linda J. Waite and Maggie Gallagher (2000)
2 – Ermisch, J. and Francesconi, M., Cohabitation in Great Britain: Not for Long, but Here to Stay, Institute for Social and Economic Research, University of Essex, 1998
3 – Kiernan, K. and Estaugh, V. (1993) Cohabitation Extra-marital Childbearing and Social Policy, Joseph Rowntree Foundation/Family Policy Studies Centre.
4 – R Boheim and J Ermisch, Royal Economic Society Conference, Nottingham, 1999
5 – Kiernan, K. E. (1999) ‘Childbearing outside marriage in Western Europe
6 – . Office of National Statistics; Measuring national well-being: Households and families, 2012
7 – Office of National Statistics; Measuring national well-being: Households and families, 2012
8 – Office of National Stastics, Families and households, 2001 to 2011
9 – Ermisch, J. and Francesconi, M., ‘Patterns of Household and Family Formation’, in Berthoud, R. and Gershuny, J. (eds.), Seven Years in the Lives of British Families, Bristol: The Policy Press, 2000, pp. 38-40.
10 – Kiernan, K., ‘Childbearing Outside Marriage in Western Europe’, Population Trends 98, 1999, pp. 11- 20.
11 – Burghes, L., Clarke, L., and Cronin, N., Fathers and Fatherhood in Britain, London: Family Policy Studies Centre, 1997. Based on Simpson, B., McCarthy, P. and Walker, J., Being There: Fathers after Divorce, University of Newcastle-upon-Tyne: Relate Centre for Family Studies, 1995; and Bradshaw, J. and Millar, J., Lone Parent Families in the UK, Research Report No 6., Department of Social Security. HMSO, 1991; and Bradshaw, J. Stimson, C., Williams, J. and Skinner, C., Non Resident Fathers in Britain. Paper presented to ESRC Programme on Population and Household Change seminar, 13 March 1997.
12 – Amato and Booth, A Generation At Risk, 1997.
13- Households Below Average Income 1994/95-2000/01, Department for Work and Pensions, London: The Stationery Office, 2002, pp. 81. These figures are for Before Housing Costs. After Housing Costs figures retain the same ratio, 72 percent versus 36 percent. See also p. 141.
14 – Cockett and Tripp, The Exeter Family Study, 1994, p. 21
15 – Whelan, Robert. 1993. Broken Homes and Battered Children. London: Family Education Trust
16 – Daly, M.; M. Wilson (1985). “Child Abuse and Other Risks of Not Living with Both Parents”
17 – Daly, Martin; Margo Wilson (1998). The Truth About Cinderella: a Darwinian View of Parental Love
18 – Booth, A. & Amato, P. 2001. Parental pre-divorce relations and offspring post-divorce well-bei ng
19 – Wallerstein, 2000 – The Unexpected Legacy Of Divorce: A 25 Year landmark Study
20 – Amato & Booth, 1997 – A Generation at Risk: Growing Up in an Era of Family Upheaval
21 – Farrington, 1990 – Implications of Criminal Career Research For the Prevention of re-offending
22 – Millienum Cohort Study, MCS4 (2008)
23 – Christopher F. Scott and Susan Sprecher, “Sexuality in Marriage, Dating, and Other Relationships: A Decade Review,” Journal of Marriage and Family, Vol. 62, No. 4 (November 2000), pp. 999–1017.
24 – Peggy McDonugh, Vivienne Walters, and Lisa Strohschein, “Chronic Stress and the Social Patterning of Women’s Health in Canada,”Social Science and Medicine, Vol. 54 (2002), pp. 767–782.
25 – Waite, L.J. and Gallagher, M., The Case for Marriage: Why Married People are Happier, Healthier, and Better-Off Financially, New York: Doubleday, 2000, pp. 97-109
26 – O’Connor, T.G. et al., ‘Frequency and Predictors of Relationship Dissolution in a Community Sample in England’, Journal of Family Psychology 13(3), 1999, pp. 436-449; Brown and Booth, ‘Cohabitation Versus Marriage: A Comparison of Relationship Quality’, 1996.
27 – Corey L. M. Keyes, “Social Civility in the United States,” Sociological Inquiry, Vol. 72, No. 3 (2002), pp. 393–408.
28 – Thomas A. Hirschl, Joyce Altobelli, and Mark R. Rank, “Does Marriage Increase the Odds of Affluence? Exploring the Life Course Probabilities,” Journal of Marriage and Family, Vol. 65, No. 4(November 2003), pp. 927–938.
29 – Allan V. Horwitz, Helene R. White, and Sandra Howell-White,“Becoming Married and Mental Health: A Longitudinal Study of a Cohort of Young Adults,” Journal of Marriage and Family, Vol. 58(November 1996), pp. 895–907.
30 – Scott J. South and Kyle D. Crowder, “Escaping Distressed Neighborhoods: Individual, Community, and Metropolitan Influences,” American Journal of Sociology, Vol. 102, No. 4 (January1997), pp. 1040–1084.
31 – Kate Antonovics and Robert Town, “Are All the Good Men Married? Uncovering the Sources of the Marital Wage Premium,” American Economic Review, Vol. 94 (May 2004), pp. 317–321.
32 – Daniel T. Lichter, Deborah Roempke, and Brian J. Brown, “Is Marriage a Panacea? Union Formation Among Economically Disadvantaged Unwed Mothers,” Social Problems, Vol. 50 (2003),pp. 60–86.
33 – Stephanie A. Bond Huie, Robert A. Hummer, and Richard G. Rogers,“Individual and Contextual Risks of Death among Race and Ethnic Groups in the United States,” Journal of Health and Social Behavior,Vol. 43 (2002), pp. 359–381.
34 – Why Marriage Matters: Twenty-One Conclusions from the Social Sciences, New York: Institute for American Values, 2002.
A recent Supreme Court judgement in the long-running case of Gow v Grant  was published yesterday, of the ruling, Lady Hale is quoted as saying the case “has lessons for the way the law should be reformed in England and Wales”
She said the first lesson was that there was a need for “some such remedy” as that provided by Scottish law and she supported calls by Law Commissioner Professor Elizabeth Cooke that reform should not be delayed before the “early days” of the next parliament.
“The second lesson is that reform needs to cater for a wide variety of cohabiting relationships which may result in advantage or, more commonly, disadvantage to one of the parties,” Lady Hale said.
“There is a tendency to concentrate upon the younger couples who have children, where one of them suffers financial disadvantage as a result of having to look after the children both during and after the relationship.
“It may be very difficult to say that the other party has derived any economic advantage from those sacrifices, but it is entirely fair that he should compensate the children’s carer for the disadvantages that she has suffered.”
Lady Hale went on: “This case was an example of such disadvantages arising in a completely different context, but one which is by no means uncommon these days: a mature couple, both of whom have been married before, each of whom has a home and an income from pensions or employment, but where one of them gives up her home and at least some of her income as a result of their living together.
“At the end of the relationship, one of them may be markedly less well off than she was at the beginning, whereas the other may be in much the same position as he was before or even somewhat better off. Such cases should not be forgotten in any scenario-testing of proposed reforms.”
Lady Hale said a third lesson from Scotland was that the lack of any definition of cohabitation, or a qualifying period of cohabitation for couples who do not have children, had not proved a problem.
She said the fourth lesson was that the “compensation principle”, although attractive in theory, could be very difficult to apply in practice because of the problems of identifying and valuing advantages and disadvantages.
Lady Hale concluded by saying that the flexibility of the Scottish law was preferable to the Law Commission’s proposals that losses should be shared, while the Commission’s list of factors to be taken into account could be a “useful addition” to Scottish law.
“The main lesson from this case, as also from the research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship.
“As the researchers comment, ‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’. English and Welsh cohabitants and their children deserve no less”.
It is interesting that yet again, Scots family law is seen as a bit of a trail-blazer in striving for fairness. Under the Family Law (Scotland) Act 2006, provision was made for and provides discretion to the court for both making of an award and the amount to be awarded when cohabitation has ended otherwise than by the death of one of the cohabitants. Usually, it is younger co-habitees with dependent children that would benefit from such provision to seek financial redress for “economic advantage, disadvantage or contribution”, such as the financial disadvantage as a result of having to look after the children both during and after the end of the co-habitation relationship. But, Lady Hale makes a very pertinent point about those more mature co-habitats, where one party is likely to have suffered a greater financial disadvantage by selling their home and at least a portion of their income. Lord Hope, delivering the main judgment in Grant v Gow held, inter alia, that; i) Although the general principle of fairness is not explicitly referenced in section 28, it is the overarching principle when making an award under that section: the purpose of having regard to the factors in subsection (3) is to achieve fairness in the assessment of compensation for contributions made or economic disadvantages suffered in the interests of the relationship. Therefore, the wording of subsections (3), (5) and (6) of that section should be read broadly; ii) Section 28 is unlike similar provisions relating to financial provision on divorce or the termination of a civil partnership: the rebuttable presumption at the end of cohabitation is that each party will retain his or her own property. Rather than a precise economic calculation, it is important to have regard to where the parties were at the beginning of their cohabitation and where they were at the end; iii) However, it may be helpful to refer to cases decided under section 9(1)(b), Family Law (Scotland) Act 1985, when the court is considering what might be taken to be an economic advantage, disadvantage or contribution for an order under section 28; iv) the natural meaning and effect of the phrase ‘in the interests of the defender’ contained in section 28(3)(b) and (6) is directed to the effect of the transaction rather than the intention with which it was entered into. ‘Provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum even though it may also have been suffered in the interests of the applicant’
But should those who choose not to seek state registration of their relationship (and in fairness there are some who are unable to formally register their relationship) expect the same level of legal protection as those couples who are married? Given that a co-habitation relationship does not always necessarily indicate permanence and commitment and indeed can be a transitory relationship, I would argue that no, there should not be the same level of legal protection and rights. Cohabitees are far more likely to break-up than marriages. The median length of UK cohabitations is under 2 years. Just 4% of these last more than 10 years (Ermisch & Francesconi, 1998). 84% of UK cohabiting couples dissolve within 5 years (Kiernan & Estaugh, 1993). Unmarried parents are still 4-5 times more likely to break up than married parents (Boheim & Ermisch, 1999; Lindgren, 1997). Within 5 years of the birth of a child, 8% of UK married couples have split up, compared to 52% of cohabitees, and 25% of those who marry after the birth (Kiernan, 1999)
Prior cohabitation raises divorce risks. Many studies across the world find that prior cohabitation raises the risk of subsequent divorce by around 40-85% (Bumpass & Sweet 1995; Kahn & London, 1991; Haskey 1992). Multiple cohabitation may be the risk factor.
But there does need to be some degree of legal protection for co-habitees that are financially disadvantaged by the end of the relationship, and I feel that there is adequate provision made in the Family Law (Scotland) Act 2006 – but this Act is only applicable to those living in Scotland. England and Wales provide little in the way of provision, as amply demonstrated by Kernott v Jones  case, and co-habitees often rely on the exceptionally complex TOTALA (Trust of and and Appointment of Trustees Act 1996), which concerns itself with property, and not financial provision for co-habitees. The case of Gow v Grant , in the words of Lady Hale; “clearly illustrated that there is a need for legal reform to provide a similar remedy in England and Wales. Although the Scottish law would benefit from a list of factors to be taken into account in the exercise of the court’s discretion, the inherent flexibility was preferable. Yet the main lesson was that ‘a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship’ ”
You can read the full Supreme Court judgement on Gow v Grant  here – http://www.supremecourt.gov.uk/docs/UKSC_2011_0184_Judgment.pdf