Call for cohabitants' rights

20th August 2018 Family Law

Apparently the wedding season is at its height right now. However, overall numbers of marriages are declining and the fastest growing family type is a cohabiting family. With this in mind, big-hitters in the family law world have written to the Guardian this weekend, urging the government to bring into law 'basic protections for cohabiting couples' and in the meantime 'raise public awareness of the lack of protections in place and challenge the common law marriage myth'.

This issue has been bubbling beneath the surface for a generation. Due to a lack of understanding amongst many, the difficulties cohabitants can face only become apparent at crisis points, namely separation and bereavement. The laws that apply to cohabiting families are a confusing patchwork. On the one hand, couples living together are obliged to claim benefits as a household and can inherit certain social housing tenancies from one another. Couples that have children together have the right to claim child maintenance and (sometimes) other forms of financial support from each other after separation. However, you cannot claim bereavement support payment unless you were married or in a civil partnership. Furthermore, there is no general scheme to create a fair financial settlement between separating cohabitants, as exists for divorcing couples and there is no right of inheritance for cohabitants when one of them dies without a will.

It is not a straightforward issue. There are no doubt many couples who wish to create no mutual legal obligations. It would be somewhat illiberal to import wholesale the legal rights and responsibilities that come with marriage into the lives of couples who are consciously remaining unmarried to avoid them. That said, life tends to just happen and people may simply not realise that there is no default scheme or safety net to prevent them being left high and dry if they move in together and either split up or die without a will that reflects their wishes. Not even the most ardent voices for reform are suggesting that separating or bereaved cohabitants are put on a par with spouses/civil partners. We are talking here about a basic scheme to prevent financial hardship and injustice, potentially with opt-outs for those who wish to keep their affairs entirely separate.

If we look north of the border, we see that the Scottish have had a scheme for basic financial provision for cohabitants in place for over a decade. Marriage has not disintegrated and the sky has not fallen in. Comments from the Ministry of Justice on the subject of reforming cohabitants' rights in England, Wales and Northern Ireland appear lukewarm so we cannot expect any improvement in the short to medium term. As the open letter states, the focus needs, in the interim, to be on educating the public as to what does and does not happen legally when a couple moves in together.

One of the thorniest issues we see in practice is when a cohabiting couple separates and the parties disagree over their respective entitlements to the family home. How can you stop this from happening?

  • If you move in together and one of you owns the property, consider what you would want to happen to the equity if you did split up. If the non-owning party makes contributions towards the improvement of the property or mortgage repayments, this could entitle them to a share of the equity but the extent of that share can be difficult to quantify, resulting in court disputes. A cohabitation agreement can set out in advance what you collectively intend to happen. It can also be updated to reflect the evolution of the relationship
  • If you feel that your home should be owned by both of you, whether 50/50 or in different proportions, talk to a solicitor and find out how you can make this happen. Ownership can be altered at any point, not just when the property is purchased. This is not right for everyone and some will actively want to avoid this but the option is there and it will not cost the earth
  • If you are buying together and the paperwork doesn't say otherwise, you will usually be treated as owning 50% each. If that is not what you want maybe because you will be contributing different amounts towards the deposit you need to tell your conveyancing solicitor and ask for advice on the best way to set out what you actually want in the proper format
  • Make sure both your wills are up to date and reflect what you would want to happen if you died tomorrow. Old wills may have been drafted under completely different circumstances and may predate a new relationship
  • Any couple living together should consider a cohabitation agreement.

Some relatively simply paperwork can save a lot of heartache in future. The situation is not always completely hopeless for separating or bereaved cohabitants but it is so much better to futureproof that to have to pick up the pieces at a time of great stress and sadness.

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Grace Matthews is an Associate Solicitor located in Manchesterin our Family department

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