Cohabitation and the law
The law in relation to cohabitation has been under review for some time. On 14 February 2016, the House of Commons Library published a briefing paper considering the current legal status of cohabitation, and the Law Commission’s proposals for legal reform.
Current Law
Contrary to popular belief, there is no such thing as a common law marriage, no matter how long a couple has lived together or whether or not the couple have children together.
Whilst couples who live together do have some legal protection, unlike marriage and civil partnership, those rights are not brought together in a statute designed to regulate their financial claims, and there are no guaranteed rights to ownership of each other’s property on separation, or if one cohabitant dies. Instead, couples have to resort to complex land law and equity claims to resolve disputes over their home, and can make claims for financial support, but only on behalf of their children.
Legal disputes between cohabiting couples can be complex, and costly, with unpredictable and unfair outcomes. The problem is becoming more acute, with the increasing number of cohabiting families – in 2015 there were 3.1 million opposite sex cohabitants (an increase from 1.9 million in 1996), and 90,000 same sex cohabitants (an increase from 16,000 in 1996).
Legal reform?
Following consultation, in July 2007, the Law Commission published a report which considered the financial consequences of ending a cohabiting relationship, and recommended the introduction of a new statutory scheme for financial relief on separation, based on the contributions made to the relationship by the parties. It was anticipated that the scheme would be available to cohabiting couples who had a child together, or who had lived together for a minimum period.
In March 2008, the Government announced it would take no further action, pending a review of the cost implications, and effectiveness, of a similar system in place in Scotland. In September 2011, following that review, the Government confirmed that, at present, they had no intention to reform the law.
In 2011, the Law Commission published a further report recommending that some cohabitants should have the right to inherit under the intestacy rules on their partner’s death, without having to apply to the court.
To date, the Government has not implemented this recommendation, and it is unclear if, or when, legal reform for cohabitees will be considered again.
What can cohabiting couples do?
To avoid potential problems in the future, some couples choose to enter into a cohabitation agreement which encourages couples to consider what they would want to happen if their relationship were to come to an end, and could save couples a lot of time, and money in the future. Whilst not strictly legally binding, courts are showing more willingness to take account of such agreements, if properly made, and both parties have received independent legal advice.
It is also advisable for co-owners of property to obtain a declaration of trust to protect each cohabitee’s share. A declaration of trust can reflect how much each person has paid towards the property (including any home improvements), their entitlement to the proceeds of sale, and their responsibility for certain expenses such as ongoing maintenance, and mortgage repayments. The declaration of trust should also include express terms which regulate what happens to the equity should the property have to be divided, on relationship breakdown, if one co-owner wishes to sell, or if a co-owner dies.
Couples should also make Wills to deal with property and finances on death, to ensure their partner inherits under the Will, and does not have to resort to a court application under the Inheritance (Provision for Family and Dependants) Act 1975.
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