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Cohabiting couples should be wary of government advice about asset separation, says LSE professor

Academic criticises not-for-profit website for exaggerating adverse legal position of non-married couples and damaging relationships

7 July 2014

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More than half the public (53 per cent) still mistakenly believe in the 'common law marriage myth' and that cohabiting couples enjoy the same legal status as married couples, according to new research from the London School of Economics and Political Science (LSE).

In response, Helen Reece, an associate professor of law at the LSE, has argued against prescriptive advice to formalise cohabitation relationships, pointing out that legal policy "overestimates the benefits of having an agreement and ignores the cost of reaching one".

The government previously rejected a recommendation from the Law Commission to strengthen the law for cohabiting couples. Instead it has embarked on an online campaign aimed at educating the public about their rights when separating and encouraging cohabitants to make legal agreements.

Website Advicenow promotes the message that it is "simple" to make a cohabitation contract, believes Reece.

However, the 30-page downloadable document along with the intricacies of housing law makes the process of producing a legally enforceable agreement anything but easy. Furthermore, Reece says that setting up such a contract creates a "me versus you" mentality.

"We know that the principal reason that couples do not contract is that they commonly assume that this would have a negative emotional impact on their relationship. This is of course why Advicenow works so hard to combat this expectation," she said.

"But if competent adults believe that contracting will damage their relationship, in the absence of clear evidence, shouldn't we trust their instincts? Advicenow gives little if any space to the possibility that cohabitants might be right."

Reece continued: "It could be suggested that Advicenow does not aim to pull off partners' rose-tinted glasses but just to enable a quick peer over the top…But making a cohabitation agreement is far from a matter of signing on the dotted line. A cohabitation agreement involves a couple generating, chewing over and resolving a range of diverse, unpleasant, counterfactual scenarios, and this may damage the optimism bias."

She adds: "Once cohabitants focus in on the potential failure of their relationship, they may believe their relationship is more likely to fail, which may in turn cause them to act as if the relationship is failing, causing the relationship to fail."

Advicenow exaggerates how bad the legal position is in the absence of an agreement and uses "atrocity tales", according to Reece. She also argues that there are no case studies of how easily partners separate if they follow the website's advice.

‘With open eyes’

Frederick Tatham is a solicitor in the family team at Farrer & Co

“A poll by the charity OnePlusOne last year found that 47 per cent of UK citizens aged between 18 and 34 mistakenly assumed that cohabiting couples have the same legal rights as their married counterparts. Fifty-eight per cent of people across all age groups believed that there was such a thing as ‘common law’ marriage when in fact there is no such thing.

“According to the Office of National Statistics, there were 5.9 million people cohabiting in the UK in 2012, double the 1996 figure. That makes cohabitation the fastest growing family type in the UK.

“Undoubtedly, the best protection is marriage. But for those who cannot persuade their partners to marry them, what can be done? Unmarried couples can enter into a cohabitation agreement, often referred to as a ‘no-nup’. These record the couples’ rights and responsibilities in relation to property and financial arrangements during their cohabitation and, of course, if and when they decide to head their separate ways.

“A cohabitation agreement can mean avoiding the cost and uncertainty of litigation, and save as a lot of stress on the breakdown of a relationship.

“It also forces couples to discuss the legal and financial consequences of their relationship which, in light of the misconceptions that exist in this area, is a definite advantage.

“The law is in urgent need for reform. The government has failed to act and it seems unlikely that the law in this area will change in the near future. In the meantime, education is key, so that people in a vulnerable position are aware of the risks and go into their cohabiting relationship with their eyes open.”

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