Cohabitation – what rights do you really have?
Rebecca Gunningham, Solicitor.
Whilst society is changing the law has not yet caught up and therefore if you fall within the cohabiting generation you need to make sure that your assets are properly protected.The office for National Statistics has recently published data showing that the proportion of the population, over the age of 16, who are married has decreased by 3.9% since 2002. Whilst being married continues to be the most common marital status the decrease shows a rising trend of couples cohabiting either instead of marriage or by purchasing a property together before marriage.
A YouGov survey undertaken on more than 1,000 cohabiting couples across the UK reveals that more than one third of those surveyed were unaware that they do not have the same legal rights as married couples. This is not assisted with establishments such as banks using terms like ‘common law partner’ on their application forms.
Financial claims on the breakdown of a marriage can be made for spousal maintenance (periodical payments), lump sum orders, property adjustment orders, pension sharing or attachment orders the same cannot be made on the separation of an unmarried couple who have been living together. For many this can bring about undue hardship when the relationship ends.
For most couples the main asset of value will be a property. This could be owned by one party alone or by both with the beneficial interest either as joint tenants or tenants in common. If the property is owned by one party alone then it will be very difficult to establish that the other party has any entitlement to that property on the breakdown of the cohabiting relationship. If held as joint tenants then it is assumed that the property is held equally and therefore on separation there would be a division of 50:50 regardless of how much each person has contributed. Holding a property as tenants in common enables couples to specify shares that they have in a property which can reflect the different financial contributions made. With ever changing circumstances this should be continually reviewed to ensure that your interest is protected.
On separation, disputes over a property between cohabiting couples are governed by complex law that does not take into account the same factors as disputes at the end of a marriage. For instance on the breakdown of a marriage one of the factors that the court considers is the contributions that each party has made to the marriage; a stay at home wife raising the children of the family is seen as providing an equal contribution to the husband who goes out to work. The same is not taken into account in a dispute over the property for cohabiting couples. The Court will look factually at the parties’ intentions and what contributions each party has made. This can lead to unfair results from lengthy and costly disputes.
There is currently no law giving cohabiting couples the same rights as those who are married however it is possible to protect yourself and your assets by having an agreement in place when you are cohabiting. If you wish to discuss this further then DWFM Beckman would be happy to assist.
Cohabitation Rights Bill
Although the law does not protect those cohabiting at present there are proposals for there to be better protection in the future.
The Cohabitation Rights Bill had its second reading in the House of Lords in December 2014. There has been little progress since but the Bill has been reintroduced, with the date of the second reading yet to be announced.
If passed this would seek to establish the rights and responsibilities for cohabitants to provide them with basic protections. The bill does not go as far as providing the same rights for cohabitees as married couples but would go some way to decrease the current gap that exists.
A cohabitant under this bill is defined as two people (whether the same sex or the opposite sex) who live together as a couple, are not married nor civil partners of each other, are not within prohibited degrees of relationship in relation to each other (i.e. one is the other’s parent, grandparent, sister, brother, aunt or uncle) and satisfy one of the following:
- Are each treated in law as being mother, father or parent of the same minor child,
- There is a joint residence order in favour of the parties is in force in respect of a minor child,
- They are the natural parents of a child in the womb at the date they cease to live together as a couple (whether or not that child is subsequently born alive); or
- They have lived together as a couple for a continuous period of three years or more.
If this bill is passed the Court would be able to make a financial settlement order on the separation of a cohabiting couple if the Court is satisfied that either the respondent has retained a benefit or the applicant has an economic disadvantage as a result of qualifying contributions the applicant has made. A qualifying contribution would be any financial or other contribution made by the applicant to the parties’ shared lives or to the welfare of members of their families during their cohabitation.
The Court would then look at factors similar but more limited to those considered on a financial application on the breakdown of a marriage. These factors include the welfare of a minor child, the income earning capacity, property and other financial resources each party has, the financial needs and obligations of each party, the welfare of any children who live with the party, the conduct of each party and the circumstances in which the applicant made any qualifying contribution.
Under this act the Court would have the power to award the payment of a lump sum, transfer of property, property settlements, sale of property and pension sharing. So whilst not covering all of the provisions available on the breakdown of a marriage there would be better protection for cohabitees than there is presently.
At present cohabiting couples do not have these rights. It is not known when or even if this bill will be passed. Therefore if you are cohabiting or are intending to cohabit then make sure you are clear about your legal position and have protected your assets to cover all future eventualities.
If you have any queries or concerns relating to your legal rights on cohabitations then please do not hesitate to contact our matrimonial team on 0207 408 8888.