Cohabitation chaos

Cohabiting couples will continue to live under the misapprehension that the law protects them if their relationship ends in separation, after recommendations put forward by the Women and Equalities Committee on this issue have largely been rejected by the government. The report highlighted not only the lack of legal protection for cohabiting couples, but also the general lack of awareness of the legal position by the public. The general public are often under the illusion that parties who cohabit enjoy rights of ‘common law marriage’, whereas in fact there is no such thing.

Recommendations

The report recommended: “the government should reform family law to better protect cohabiting couples and their children from financial hardship in the event of separation”, including a recommendation that there should be an opt-out cohabitation scheme. Both of these were rejected. The report also recommended that there should be a public awareness campaign to highlight the legal distinctions between marriage, civil partnerships and cohabiting couples. While the government did not consider a national awareness campaign to be necessary, it did agree that steps should be taken to raise awareness of this issue including considering whether better signposting for further information and support could be made available. The government partially accepted a recommendation to look at an information campaign aimed at women in religious communities where religious-only (and nonlegally binding) marriages are commonplace, to highlight the risks of not having a ceremony which meets the legal formalities of marriage.

Rights which remain

Currently, cohabiting couples have no automatic rights if their relationship ends in separation. With regard to the family home, aside from emergency protection under the Family Law Act 1996 in respect of personal protection (non-molestation orders, or NMOs) and interim housing rights (occupation orders), they can only pursue a claim with reference to the family home in limited circumstances. This means they either have to show they have a legal and beneficial interest in the property by being named on the deeds, or they need to persuade a court that they have established a beneficial ownership under complex and archaic trust and estoppel principles. Needless to say, the general public would not even understand what these principles might relate to or how they play out.

Financial support

The law in respect of child support maintenance, on the other hand, is the same, irrespective of the legal status of the parents’ relationship. However, there is no right for a cohabitee to seek maintenance for themselves or a share of their partner’s acquired wealth and pensions. There is one unusual situation in which a cohabitee can seek maintenance for themselves, which applies in those cases where child support maintenance is payable for a child of the relationship and the paying cohabitee earns more than £3,000 per week. This is because, in those rare cases, the court has power to award what is known as a carer’s allowance to the party who has care of the child.

Conclusion

As a family lawyer practising in this area, I regularly see parties who have no idea what legal rights they might possibly have. Sometimes they assume they have rights and are shocked and left feeling vulnerable when they are advised they have no rights, sometimes after a long relationship where children have been brought up. Others are surprised to be told they do have rights – for example, the limited rights children of unmarried parties have to remain living in the family home, which can also mean the parent who is their main carer can be housed, but only while the children are dependent. Cohabitees and former cohabitees who cannot afford access to legal advice often have no idea how to act in their best interests – and the highly complex nature of this area makes it very difficult, if not impossible, for parties to navigate on their own without guidance from a specialist family lawyer. Until such time as the system is reformed, so people have rights that are simple and that they understand, we as family lawyers will continue having to work with a system that is far from ideal – and which is often unfai

Julia Cluley is a family law specialist solicitor with Valemus Law: valemuslaw.com

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