For many reasons, the trend of marriage is falling out of favour. Cohabitants are the fastest growing family type in the UK with some 3.6 million cohabiting couples in the UK, an increase of 23% over the past decade. There are various reasons why people are choosing to cohabit rather than enter into a marriage. One of those reasons is the rising cost of weddings, especially in the climate of a cost-of-living crisis. However, do people really appreciate the legal implications of this choice.
Currently, the law provides limited rights to cohabiting couples. This is in stark contrast to the rights granted to married couples on divorce. For divorcing couples, there is legal protection to ensure that the children’s housing needs are placed as the first priority. Further, the court has the power to divide assets in any way that they consider fair, notwithstanding the legal ownership of those assets. For cohabiting couples there is no equal provision. This is often to people’s surprise. We have seen people who have cohabited for decades only to find out that they have no rights against the family home on separation, with it being held in their spouse’s sole name. This often leaves people in a precarious situation financially, especially when they have sacrificed a career to raise a family.
Unmarried parents can seek child maintenance through the Child Maintenance Service for children under the age of 16 or under 20 if they are still in full time education. They can also seek financial provision for the benefit of the child under Schedule one of the Children Act 1989. However, there is no legal obligation to provide financial support to the other party on separation, notwithstanding the circumstances.
If one party wishes to make a financial claim against property following their separation, they may only do so under the Trust of Land and Appointment of Trustees Act 1996. This is property law, which provides limited circumstances in which a claim can be made against another person’s property or to challenge the proportions of jointly property. However, the law in this area is not particularly clear and often results in lengthy and contentious court proceedings.
Will I be protected by common law marriage?
Common law marriage is a myth. As explained, there are no automatic rights granted to couples who have been living together for a certain period of time, even if they have been living as a married couple and had a family. There have been recommendations for the law to be reformed in this area and in particular to keep up with other countries such as Australia and Canada who already recognise cohabiting relationships and provide legal protection. However, our law is yet to offer legal protection for what has become a very common family set up. It is therefore highly advisable to take matters into your own hands and ensure that you have the protection that you need either in protecting your assets from a potential claim or ensuring that you receive what is fair in the event of a separation.
What can cohabiting couples do to give themselves more certainty?
We advise cohabiting couples to enter into a cohabitation agreement. This is a written and signed document that will address property ownership and financial obligations towards each other both during your relationship and in the event of separation. The key points are:-
1. Who owns what property at the time of the agreement, and in what proportions;
2. What financial arrangements you have decided to make while you are living together i.e. in relation to payment of the household bills and children’s expenses;
3. How property and other assets along with the parties income should be divided if there should be a separation.
In circumstances where the agreement has been reached reasonably, with the parties having independent legal advice and in the absence of any duress to enter into the agreement, the court is likely to uphold it.
We are already living together, can we still make a cohabitation agreement?
You can enter into a cohabitation agreement at any time. This can be done before you start living together or even in circumstances where you have been living together for a long period of time. Your chosen solicitor can help you negotiate the terms of the agreement and advise you upon what is fair and reasonable. You may also like to consider using a mediator, an independent third party, who can assist you in agreeing terms.
If you would like further advice about cohabitation agreements or your rights as an unmarried couple, use the links below to book an appointment with us today.
