27 Nov 2017

This week we’re supporting Resolution to help raise awareness about the lack of legal protection for cohabiting couples.

Throughout Cohabitation Awareness Week, we’ll be publishing a series of articles which help answer the questions we’re frequently asked by unmarried couples who live together. We’ll provide insights on the current legal pitfalls and property ownership as well as guidance on planning effectively for the future and changing circumstances.

In our first Q&A, Sylvia Haigh addresses the common law marriage myth, changes to the law and how to avoid litigation if a relationship breaks down.

Why is common law marriage a myth?

Cohabiting couples are the UK’s fastest growing family type but they have no legal rights following separation, which leaves the economically weaker party in a very vulnerable position.

However, many couples are unaware of this as there is still a misconception that there is such a thing as a common law marriage. This means that many cohabitees only take advice following the breakdown of the relationship, by which stage it is often too late.

Take the example of a mother who has given up her career to have children and look after them with the agreement of her partner. Several years down the line when the children are much older, she decides to separate from her partner only to find that she is not entitled to maintenance for herself in the same way as if she had been married and that she can only claim maintenance to support her children if they are under 18, disabled or in full-time education.

Furthermore, in terms of capital/property, unless there is an express agreement in place such as a cohabitation agreement or a declaration of trust relating to ownership of property, or she owns property jointly with her partner, she may find herself with no legal claims to pursue and facing real financial hardship.

Is the law on cohabitation changing?

The law is long overdue for reform. The Cohabitation Rights Bill 2014, which aims to establish rights and responsibilities for cohabitants and provides basic protections if couples stop living together, is still on a very slow journey through the House of Lords.

The legislation proposes to address the economic unfairness at the end of a relationship which leaves one party financially vulnerable. There has been a call for legal reform for many years but whether this will happen any time soon depends on issues of public policy.

If we live together but aren’t married, how can we avoid complex and expensive litigation?

1. Compile a living together agreement setting out important factors such as:

  • Who owns what and in what proportions
  • Future intentions for ownership
  • Contributions being made to household or property and the difference, if any, that it makes to ownership
  • Use and occupation of property
  • What is to happen if you separate – say if one party remains in the house with children
  • Triggers to review the arrangements such as the birth of a child, engagement or sale of property
  • Position in the event of death

2. Create a Will

3. Carry out pension planning

4. Consider tax implications upon death and transfer of assets.

For further information, please contact our family team.

To read the other articles from Cohabitation Awareness Week, please click here.