Written by Lauren Roche is a Senior Associate at Stowe Family Law
Cohabiting is on the rise. As Britain’s marriages continue to decline, more and more couples are choosing to live together without tying the knot.
According to new data released by the Office for National Statistics (ONS), cohabiting couples are now the fastest-growing family type of the past decade, shooting up by 16 percent since 2012 to 3.6 million in 2022. This increase of almost 700,000 families accounts for almost three-quarters of the total growth in the number of UK families.
The myth of the common law marriage
A recent survey by Stowe revealed that over half of Brits erroneously believe in common law marriage, and that living with a partner over a period of time affords them the same legal rights as married couples.
This, however, is a complete myth, and puts couples potentially in a vulnerable position financially, as they believe they don’t need to look at alternative ways of protecting themselves.
The reality is that cohabiting couples share very few of the legal rights enjoyed by their married counterparts. As a result, following the breakdown of a relationship or the death of one party, there are different legal implications for cohabitees.
Capital assets, such as the family home, are not divided, as they might be in divorce. If a property dispute occurs, trust and land law are applied instead of family law.
There is no automatic entitlement to make financial, capital, spousal maintenance, or pension claims. There are however laws concerning the children of cohabiting couples, as there is no distinction between married and unmarried parents when deciding on issues such as who the child (or children) will live with, how often they will see the other parent, and child maintenance.
Financial protection for unmarried couples
There are several ways that your cohabiting clients can protect themselves financially should their relationship break down, including:
Cohabitation agreements
A cohabitation agreement allows couples to set out their intentions when they move in together, including what would happen to any property if they separated.
They clearly define who owns the property/assets, what financial arrangements are whilst the parties live together, and how the property and assets should be divided upon separation.
It is not a legally binding document, but if properly prepared by a solicitor and both parties have sought independent legal advice, the agreement will likely be persuasive in court if a dispute arises regarding the property/assets upon separation.
The agreement can also be updated as the years pass, including if the couple has children together, and this will ensure that the agreement accurately reflects the parties’ intentions at each stage in their lives together.
A Declaration of Trust
A declaration of trust is an agreement that can be used to confirm the proportions in which two or more individuals own a property, for example, the amount of equity for each party or how it will be split should the relationship break down.
Making a Will
Having a valid Will in place is vital. Without one, unmarried cohabitees do not inherit under the rules of intestacy. A cohabitee can claim under the Inheritance (Provision for Family and Dependants) Act 1975, if they have been in a relationship for at least the two years up to the point of their partner’s death, living in the same household as if they were a married couple. However, these claims are complicated and expensive to progress, and any outcome is difficult to predict.
For those cohabiting couples where the relationship has broken down, there are some options including:
Trust of Land and Appointment of Trustees Act 1996 (TOLATA)
You can make a claim to ask the court to decide what share of the property each party owns, and whether it should be sold to release one party’s share. However, this is a complex area of trust and land law, is a civil claim and has time and cost implications.
Schedule 1 Applications
People can claim financial provision for the children from the other parent. This can be maintenance or a lump-sum, but depends on family circumstances. It is important to note that any provision for maintenance will be based on the parent’s role as the child’s carer, and does not seek to share the assets, as is the case for divorcing couples.
The future of cohabitation rights
In August 2022, the Women and Equalities Group from the House of Commons urged the government to end “legal limbo” for cohabitees, by strengthening cohabitation rights and responding to recommendations made by the Law Commission.
However, this was rejected in November 2022 by the government, leaving millions of couples who choose not to marry at risk of financial poverty or lengthy and costly disputes over assets if the relationship breaks down.
The government’s refusal to offer legal protection shows just how draconian the laws around cohabitation are in England and Wales. With change nowhere in sight, it is important to work with cohabiting couples to support them to put any available financial protections in place.
