Cohabitating couples are not protected in law as a married couple are, and the law that governs cohabiting couples is vastly different to the law relating to married couples or those who have entered into a civil partnership. It is imperative that you enter into cohabitation with your eyes wide open to this fact and take action to protect both parties.
In the last 20 years, marriage has for a variety of reasons lost its appeal to many couples, as many people simply decide to live together. The office for National Statistics confirmed last year that cohabiting couples are the fastest growing type of couple in the UK. The Marriage Foundation reported in August 2015 that marriage is becoming less prevalent in middle class income families as well as low income families.
So how many people now choose to cohabit rather than enter into marriage or a civil partnership?
In November 2015 the ONS Families and Household survey confirmed that there are 3.1 million opposite sex cohabiting couple families and a further 90,000 same sex cohabiting couple families which takes us over 6 million individuals in such relationships.
Despite this ongoing trend, and endless campaigning by lawyers and politicians, cohabiting couples are not afforded adequate protection which is given to those who are married or have a civil partnership. Worryingly, according to research in 2013, almost half of the population believe that cohabitating couples have similar rights to those who are married. This maybe due to the fact that countries such as Australia, Canada and Scotland do recognise cohabitation relationships and provide the couples with legal protection.
Do cohabitating couples have the same legal protection as a married couple?
If you are already cohabiting with no plans to marry or plan to cohabit in the near future then the following check list is a useful tool to protect your interests whilst you are together and also if a later date you were to separate or one of you were to pass away.
Consider a cohabitation agreement. Under current English Law there is no guaranteed legal right to a partners share of their assets. It is therefore important to consider a cohabitation also known as a “living together” agreement. This is a document that can be drafted by family solicitors and It provides a great opportunity to think about your assets and what would happen if you were to separate. The document can deal with how you would divide assets, deal with debts, split tangible assets such as cars and furniture. You can agree maintenance if for example one partner is a stay at home parent looking after young children. The document can be updated as the relationship progresses for example if new assets accrue or children are born.
Cohabitation agreements can be enforceable by the courts as long as they represent a fair and reasonable agreement and importantly that it can be shown that each party has sought independent legal advice and each party discloses all financial information when negotiating the terms.
If you are purchasing a house consider holding it in both of your names, using one of the methods below. When a married couple divorce or a civil partnership is ended the law enables the assets to be divided fairly. Married couples have equal rights to their home regardless of whose name it is in and who pays the mortgage. Non-married couples do not have that right and at the end of the relationship could be left in a very vulnerable position if the house is only in one of the parties’ names.
If you are not contributing equally you may wish to hold as Tenants in Common and a document can be drawn up to show in what percentage you both own, which will make division of the asset much easier and clearer. If you hold in this way it is imperative that you make a will as I explain below.
If you have made equal contribution or want your ownership to be equal you can hold as Joint Tenants and therefore you will both own in equal shares. If you hold the property in this way then if one of the couple were to pass away the house would fall outside of the deceased estate and would automatically fall to the surviving owner.
Your conveyance solicitor will be able to give you clear advice on these two options
Make or update your Will.
It cannot be emphasised enough that every adult should make a will whether they are single, married or cohabiting. It is especially important to do so if you are cohabiting as any assets in your individual name will fall into your estate and under the intestacy rules will pass to your next of kin which will be a relative and not your partner. If you hold the house in joint names but as Tenants in Common as explained above, and you do not have a will, then the deceased’s share of the property will again fall under the intestacy rules and go to their next of kin, which potentially could be a distant relative and could result in the family home having to be sold.
Ensure you have parental responsibility for your children.
If you are unmarried and your child was born on or after the 1st December 2003, and the father is named on the birth certificate then he will have parental responsibility. If he is not named on the certificate he will not automatically have parental responsibility. If you had children prior to 1st December 2003 you may not have parental responsibility even if you are named on the birth certificate. Parental responsibility is a bundle of rights which allow you to be party to important decisions in the child’s life, including education and obtaining information as to the child’s progress, religious issues, or consent to medical treatment. Without Parental responsibility you technically do not have the right to do this. If you do not have Parental responsibility the parents can agree together to enter into a Parental Responsibility Agreement for the benefit of the father.
What does the future hold?
Lawyers, campaign groups and politicians have campaigned to change the current legal status of cohabiting couples to provide them with protection. In 2014 a private members Bill- “The Cohabitation Rights Bill was introduced into the House of Lords and progressed as far as the second reading of the Bill which took place on the 12 December 2014.
The Cohabitation Rights Bill 2015-2016 was reintroduced in 2015 and had its first reading on the 4th June 2015.
The Bill is aimed to “provide certain protections persons who live together as a couple or have lived together as a couple; and to make provision about the property of deceased persons who are survived by a cohabitant”. With the ever increasing number of couples deciding to cohabit rather than marry or enter into a civil partnership, such a Bill is welcomed by many as a necessary piece of modern legislation to keep pace with our changing cultural society. Others however would argue that such a piece of legislation potentially weakens the institution of marriage.
Until such a Bill passes through both Houses of Parliament and is made law, the ongoing position is that cohabiting couples need to be aware that they do not have the same protection under English Law as married couples and so should consider putting into place practical and fair safeguards.
Written by Helen Victoria Bishop
Helen Victoria Bishop is a member of Resolution and a Consultant Solicitor. Helen qualified as a Solicitor in 1999 and has practiced in family law ever since. Helen is also the author of “Jack” a children’s illustrated book to help children deal with the issues of divorce and separation. The book is aimed for children between the ages of 4 and 11 and is endorsed by “Resolution”. he book can be purchased at Amazon or in Waterstones, for more information visit www.jackandblackcat.com
Photo credit - Ruth Langford