Under my roof: cohabitation and couples' rights
Claire Chisnall explores legal principles and protections for couples choosing to cohabit.
Cohabiting couples make up the fastest growing family type in the UK, as individuals increasingly choose to hold off on (or indeed opt out of altogether) getting married.
What is surprising given this trend is that 51 per cent of Brits think that couples who live together automatically have the same legal rights as married couples. This was revealed in a survey conducted by our firm, Stowe Family Law.
We were keen to gather an understanding of how pressing a matter it is for the law to catch up with modern family choices – specifically cohabitation, in this case. With so many couples falsely believing there is such a thing as a ‘common law marriage’, there is a real need for a better understanding of how cohabitees can protect themselves in the event a relationship breaks down.
Common law confusion
A ‘common law marriage’ is merely a way of describing a couple that lives together. It is a highly misleading term that draws people into an erroneous belief that it has any legal basis to it. The reality is that, should a cohabiting couple split up, or one find themselves widowed, the financially weaker party will be unable to make any claims on spousal maintenance, the other’s pension or the property (unless it is jointly owned).
The law governing property in the event of a cohabiting relationship dissolving is the law of property and the law of trusts. In the case of the wealthier of the two passing, if there is no will, under the rules of intestacy, unmarried couples do not inherit.
There are, however, ways for cohabiting couples to protect themselves financially. Cohabitation agreements are an effective way of side-stepping the costly disputes that can ensue after an unmarried couple breaks up and finds themselves dissatisfied with their situation.
A gap in provision
The survey that we conducted also revealed that only 9 per cent of cohabiting couples have a cohabitation agreement in place. This is likely because couples don’t believe they have any need for one, due to the incorrect notion that they are legally protected by virtue of living with their partner.
Cohabitation agreements can cover many points, such as property rights, financial provision, child arrangements and ownership of possessions should a relationship end. However, it is worth noting they are most effective in relation to property, due to existing legislation that protects the parties’ intentions, which is not the case for the other points, such as maintenance.
Cohabitation agreements – which can be entered into and revisited at any point in the relationship – set out both party’s intentions where property and any other assets held between them are concerned (either in their sole names or jointly). The agreement clearly explains who owns the property or assets, what the financial agreements are while the parties live together, and how these should be divided up upon separation.
How do these help?
Although a cohabitation agreement is not a legally binding document, it is likely to be highly persuasive in court should a dispute regarding property or assets arise following separation. To hold up in court, it must be properly prepared by solicitors, with both parties having sought independent legal advice.
The legislation to be relied upon by cohabiting couples upon separation is very factually based. So, for example, who the legal owner of the property is; the contributions made to the property by both parties; and what each party’s intentions were at the point of purchasing the property. Emphasis on the parties’ intentions is high, particularly in cases where the legal ownership of a property does not reflect what the parties say was intended between them. If there is nothing in writing to evidence what the parties intended, costly litigation can ensue as it is such a difficult point to dispute.
Without a cohabitation agreement in place, the number of disputes likely to occur will steadily increase as more and more couple choose to live together without getting married.
While the UK’s archaic divorce laws are making some progress in catching up with modern family choices – we all know no-fault divorce is due to come into effect on 6 April 2022 – there is still a way to go for much-needed legal protection to cover the UK’s 3.4m cohabiting couples.
Claire Chisnall is a solicitor at Stowe Family Law: stowefamilylaw.co.uk