Joanna Pratt, Head of Family recently wrote a piece for Wealden Times.
Cohabiting couples make up the fastest growing family type, with nearly one in every four families in the UK living together without being married. Contrary to popular opinion, there is no such thing as a ‘common law’ spouse and the law doesn’t recognise cohabiting couples in the same way as those who are married or in a civil partnership.
Resolution, which is a community of family professionals who work with families and individuals to resolve issues in a constructive way, is holding a ‘Cohabitation Awareness Week’ from 27 November to 1 December 2023. This is an important area of family law, which is often not fully understood. There has been increasing pressure on parliament to enhance the rights unmarried couples have.
What rights do cohabiting couples currently have?
Many clients who come to us for advice believe they are protected as a ‘common law spouse’, if they live together for several years, sometimes for decades. It can come as a shock to them to discover that there is no such status and, therefore, no protection or automatic right to make financial claims against their former partner when the relationship ends.
When a marriage or civil partnership breaks down, a spouse can apply for financial orders under the Matrimonial Causes Act 1973, including spousal maintenance, an interest in a properties which are in the other spouse’s sole name, a lump sum or a share of the other spouse’s pension – even if they made no financial contribution during the marriage. Cohabitees on the other hand, are not similarly protected. Further, unmarried couples have no automatic right to a share of their partner’s property in the event of their death, no automatic right to inherit their estate, no automatic right to various tax advantages and in many cases, no automatic right to receive the deceased partner’s pension.
What can couples who do not wish to get married do to protect themselves?
One of the most important things to consider is how you will own property, particularly if the title is to be registered in one party’s name but the intention is that it is jointly owned. This will need to be recorded elsewhere, for example in a declaration of trust, so that everyone is clear as to where they stand and what the contributions are.
It may be wise to consider drawing up a cohabitation agreement. This is a legal document between a couple who are living together but not married or in a civil partnership. 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 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.
Cohabitation agreements are a legally binding contract as between the couple, and will usually be upheld by the court provided they are drafted and executed properly, which is why it is essential to take legal advice before an agreement is prepared.
If you have any questions about this topic, please do get in touch with our expert family lawyers.