The Government has faced increasing pressure to confirm its plans for reform of its cohabitation law, to strengthen the rights and protections offered to those in cohabiting relationships.
More people are living together without marrying. There are millions of cohabiting couples in the UK, the number which is increasing year by year. Many cohabiting couples do not realise that their legal rights are limited, with many believing in the myth of ‘common law marriage’, an idea that if you live with someone long enough, you automatically get the same rights as a married couple.
Currently, if a cohabiting relationship breaks down, some partners can be left in financial hardship, as they may have little or no legal claim to shared assets, or even to a home, unless they have very specific legal documents. Even when there are children, cohabitating parents do not usually get the same benefits and protections in a separation as married couples do.
There is no standard legal status for an unmarried couple living together, unlike marriage or civil partnership, it does not give you automatic right to each other’s property, pensions, finances or inheritance upon separation.
Currently, if a property is involved that a cohabiting couple have lived in prior to separation and it is owned solely in the name of one party, the cohabitant in who is not named on the title to the property may, in limited circumstances, use legal mechanisms such as TOLATA claims (in accordance with the Trusts of Land and Appointment of Trustees Act 1996), but these are complex, fact driven and costly. For children, there are limited legal routes for payments, such as Schedule 1 of the Children Act 1989. Plus, many people do not have wills or legal agreements in place, so when one partner dies, the other may receive little or nothing, unless the couple made arrangements in advance.
Campaigners and MP’s want to seek a reform to cohabitation laws, suggesting a change to cohabitants’ rights at the point of separation, such as financial remedies, shared property rights and legal support.
They have also called for a campaign to make people aware of the real legal position, given that many cohabitants do not know how vulnerable they are.
One proposal includes an ‘opt out’ system, where cohabitants would automatically get protections unless they formally opted out, an idea that was floated by the Law Commission in 2007.
There is also pressure for there to be a reform as to the operation of inheritance laws, for example, making cohabitants more like spouses when some dies intestate (without a will).
A reform to cohabitation laws could provide cohabitants with a legal safety net at the time of separation, enabling them to make financial claims against each other, even without getting married, providing automatic protections and inheritance rights.
However, reforming the current cohabitation laws could be difficult. Firstly, defining ‘cohabitation’ is hard. Creating a legal definition raises the following questions: What does it mean to legally live together as a couple? How long is long enough? What counts as commitment? These are not easy lines to draw resulting in complex administration. There may also be a fear of undermining marriage. Any change to the current law could take years, leaving people disadvantaged for now.
While the reform has not yet happened, there are various options available to cohabitants. Consideration could be given to making a will, to ensure that cohabitants leave each other anything they wish the other to inherit. Cohabitation agreements can be entered into, which are legal documents where both cohabitants set out the property that belongs to them, how things are shared during cohabitation and what should happen in the event of separation. Consideration should be given to obtaining independent legal advice, especially when contemplating buying a property together, to make sure both parties’ financial contributions and future intentions are clearly set out in writing.
If you would like advice and support in relation to cohabitation matters, please get in touch with the Family Team today and we would be more than happy to discuss your matter further. Alternatively, if you wish to discuss the matter of a will, please get in touch with the Wills and Probate Team. To speak to either team, please contact our office in Leicester on 0116 255 4855 or our office in Loughborough on 01509 610 312. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in our enquiry form.
