Moving in with your partner is one of the most exciting times of your life. We all hope that our relationships will be successful in the long run and that we will never have to think about the ‘what if’s’ if the relationship were to end.
There are currently more than 3 million people living together in the UK as cohabiting couples according to the Office of National Statistics. The proportion of people who are cohabiting and not in a marriage or civil partnership has increased from 20.6% in 2011 to 24.3% in 2021, an increase across all age groups aged under 85 years. Among those aged 18-24, cohabitation is now more prevalent than when living with a spouse.
What legal protection is there for unmarried couples?
This leads to the question of what legal protection there is for such unmarried couples if their relationship breaks down. Despite some people believing in the concept of a ‘common law marriage’, this has not existed in England and Wales since 1753. Couples who are not married or in a civil partnership in England and Wales do not automatically have the same rights as married couples, even if they have lived together for a long time or have children.
There have been increasing calls for legal reform in recent years due to concerns about the inferior protections for cohabiting couples compared with spouses or civil partners. In August 2022, the Women and Equalities Committee published a report in which they put forward a number of recommendations for cohabitation law, with the aim of providing better protection for cohabiting couples and their children on separation. Despite resistance from the government to completely reform the current law, there has been some progress in extending cohabitee’s rights, such as the extension of the Bereavement Support Payment and Widowed Parent’s Allowance. In light of these developments, it may be that the implementation of some of the other recommendations are on the horizon.
Until the law changes, couples living together need to be aware of their rights (or lack of rights) and consider taking any steps they can to protect themselves, in the hope of providing more certainty and clarity to their legal position and hopefully avoid complex and costly disputes in the future if the relationship were to break down.
How can a cohabitation agreement help?
A cohabitation agreement is a legal document between a couple who are living together but not married or in a civil partnership. Cohabitation agreements can also be made between people who are living together but are not romantically involved, such as friends, siblings or other family. It will typically set out the arrangements for the finances, property and, sometimes, children whilst the couple are living together, and what the agreed arrangements will be (financially and for the children) if they were to separate. The agreement can deal with a wide range of matters, including property ownership, financial contributions during the relationship and, in some cases, arrangements for the children and future maintenance.
You can make an agreement at any time, though it is usually a good idea to do so before you move in together, or if you are already living together but decide to take out a mortgage or have children.
A cohabitation agreement can help provide certainty as to what is intended between a couple at the outset with the hope of reducing the potential for future disagreement. Court proceedings between separating couples can be very stressful and expensive, as well as being inherently uncertain, and can often be avoided if you have a valid agreement in place confirming what is to happen on separation.
Whilst there is no guarantee that a cohabitation agreement will be upheld by the court, they will generally be enforced so long as the validity of the agreement cannot be challenged. There are guidelines which are therefore followed when preparing a cohabitation agreement, to ensure that it carries as much weight as possible. This is why it is important to take advice from a family solicitor and have the agreement prepared by them. Other things to consider when moving in together include the preparation of declarations of trust and wills, dealing with property ownership and inheritances.