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With myths abound such as the typically cited “common law relationship” and with, in the region of 3.2 million couples cohabiting in 2015, what sort of protection is offered to parties who choose not to marry, both now and in the future.
The law does not currently recognise a cohabiting relationship, regardless of how long the parties have been together, even if they have children and the law therefore offers such couples very limited legal protection.
When an unmarried couple separate the needs of the parties are not considered as they are likely to be had the parties married. Additionally any “non-financial” contributions that one party may have made, such as keeping house or raising children are not afforded weight by the court over any financial contribution made. Therefore a lack of legal protection for such parties can often result in what many would consider to be an unfair outcome.
Unmarried couples are afforded no legal protection on death. If one party dies there is no automatic right to inherit the other party’s estate if they die intestate (without a will). Also in the event that assets are left to the remaining party, cohabiting couples do not benefit from any Inheritance Tax exemptions as is the case for married couples.
Many cohabiting couples believe the myth that they are entitled to the same rights as a married person and therefore they are unaware of the existence of legal documents which can help protect their position in the event of a separation.
What therefore can cohabiting couples do to protect themselves? The first answer to this could be that couples might want to consider getting married as this will afford them some legal protection that they currently cannot get in any other form. However, in some cases for religious or a variety of other reasons, parties just do not want to get married so what else can they do?
Cohabiting Couples may wish to consider having a Cohabitation or “Living Together” Agreement (to quote it’s more colloquial reference). This type of agreement sets out clearly the parties’ agreement on ownership of property and other assets and can go into much detail about what is to happen in the event of separation.
A Declaration or Deed of Trust sets out the parties’ respective shares in a property; this document can be as simple or as detailed as the parties require it to be. It is worth remembering that equity follows the law in respect of ownership of property therefore, if the Deed of Trust states that the parties own a property in 50% shares, the legal onus would be on the party intending to argue otherwise to prove this to the court. This is very difficult to do and the procedure is usually a lengthy and expensive one so parties are advised to ensure that the correct type of legal document is entered into from the offset.
Cohabitants can make an application to court under S.14 of TOLATA (Trusts of Land and Appointment of Trustees Act) 1996 in order to obtain an order from the court regarding their respective shares in a property and to force a sale of the property.
If the former cohabitants have children one of the parties can also make an application to court under Schedule 1 of the Children Act 1989 in respect of periodical payments, lumps sums or a transfer or settlement of a property order or for an occupation order. It must be noted however that there is no provision for maintenance for cohabiting couples in the vein of spousal maintenance which may be ordered had the parties been married.
The Cohabitation Rights Bill had its first reading in the House of Lords on 4 June 2015 and the second reading is awaited. Under the proposed legislation couples must have lived together for at least three years before they can be afforded legal protection and, if they meet certain criteria, they may be able to apply to court for a financial or a non-financial order which could include orders for payment, orders for the transfer or sale of a property or even pension sharing orders.
There is an argument that same-sex couples entering into a civil partnership (rather than marrying) already have such legal protection and are therefore in a better position than heterosexual couples as they can choose not to get married but still receive the same legal protection as parties who marry. This position was challenged in the High Court by heterosexual couple Charles Keidan and Rebecca Steinfeld who do not wish to get married but would like to undertake a civil partnership which they are currently not allowed to do as they are not a same-sex couple. The couple argued that they were being discriminated against because they did not have the same choices as a same-sex couple but this was dismissed by the court and their application for Judicial Review was rejected; the couple intends to appeal this decision.
When taking the decision to cohabit with somebody it is prudent to understand how you can protect yourself legally from the outset as this is much easier to do at the start of a relationship than to unpick everything and to make legal challenges when a relationship has reached its end.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles