Cohabiting couples are now the second largest and fastest growing family type in the UK, the Office for National Statistics (ONS) have announced. However, before getting too caught up in this statistic, it is important to note that it will be many decades before cohabitating families overtake those who choose to get married.
English law remains almost archaic in the way it treats cohabitees. Let’s take a man and woman who have lived together for 25 years. Firstly, their relationship has lasted longer than a great many marriages, but consider:
- If one partner is seriously injured, the other will be unable to make decisions on their behalf (unless there is a Lasting Power of Attorney (which covers health and welfare) in place. They may also face a delay in being told about the accident as they are not legally the next of kin.
- The laws of intestacy do not apply to a cohabitee, therefore, if one partner dies without making a Will, the other could be denied the right to inherit any property.
- If a cohabiting couple separate, the laws which protect the financial rights of a couple divorcing do not apply.
It is the latter that is most concerning, as this can lead to shameful situations where one partner is left destitute because property and/or other assets were in the financially stronger partner’s name. And this is not due to the inhumanity of the courts. In the highly publicised case of Curran v Collins, Lord Judge Toulson stated:
“Sadly, the appellant found herself in the classic position of a woman jilted in her early 50s, having very much made her life with the respondent for over 30 years,” he said.
“The law of property can be harsh on people, usually women, in that situation. Bluntly, the law remains unfair to people in the appellant’s position, but the judge was constrained to apply the law as it is.”
Miss Curran had been with Brian Collins, 52, since the late 1970s and worked with him at his kennels and cattery business.
But after their relationship ended in 2010, a county court judge ruled that she had no right to a share in the business or the home where they had lived together, effectively leaving her penniless.
On appeal to the Court of Appeal, Lady Justice Arden noted that Mr Collins had paid for all the homes they had lived in together and made it clear that she was not a co-owner. She was also held not to be a partner in the business and, on her tax returns, stated that she was an employee, earning £50-a-week.
This case serves as a harsh warning to those who are living with a partner: if your name is not documented on land titles etc, you need to consider how you can protect yourself financially, should your relationships go sour.
The Cohabitation Rights Bill [HL] 2017-19
Cohabitation Rights Bill [HL] 2017-19 is currently awaiting its second reading in the House of Lords (where it was tabled back in July 2017).
If you want an idea as to the importance the UK Government is giving to the issue of providing fair rights to couples who choose not to marry, consider that this Bill is based on a Law Commission’s report and proposals made a decade ago. In addition, as at the time of writing, no date has been set for the second reading.
If the Bill ever does make it out of Westminster, its purpose is to: “provide certain protections for persons who live together as a couple or have lived together as a couple as cohabitants; to make provision about the property of deceased persons who are survived by a cohabitant; and for connected purposes.”
It will provide the courts with the power to confer a financial settlement within two years of a couple separating. However, unlike a married couple, for a financial order to be made, either the respondent must have retained a benefit, or the applicant must have suffered an economic disadvantage because of the applicant’s contributions. If this condition is met, the court can order a lump sum payment, transfer of property, property settlement, the sale of a property and pension sharing. Couples will be entitled to opt-out of the agreement provided each receives independent legal advice.
Provisions are also included to deal with cases of intestacy and life insurance.
However, it is important to note; this is the third attempt to pass a cohabitation bill. None of the previous efforts have made it past the second reading.
It is clear that if you want to protect your rights, you must take matters into your own hands.
What cohabitants can do to protect their rights
The most important step to take when protecting your rights as a cohabitee is to organise a Cohabitation Agreement as soon as you move in together. A Cohabitation Agreement sets out who is entitled to what if you separate. It can also detail how you both plan to divide financial expenses such as mortgage payments while you are living together. Is this romantic? Probably not. But until the law changes (which shows no signs of happening soon), a Cohabitation Agreement provides you with the best chance of protecting your rights in the event of a separation.
Also, if you want your partner to inherit your property and other assets when you die, you must draw up a legally binding Will. And, if it is important to you both that you can make decisions for each other should one of you become incapacitated (either through old age or an accident), you need a Lasting Power of Attorney.
In summary
The 27th November to 1st December 2017 is Resolution’s Cohabitation Awareness week. The organisation, which comprises of around 6,500 solicitors (including our family law team) is running a campaign to raise awareness of cohabitants’ legal rights and debunk some of the myths around ‘common law marriage’; a status which has no legal standing under English law.
We are proud to support this campaign and are happy to have a chat with you if you have any questions regarding your legal rights as a cohabitee.
To talk to any of the family law team about a Cohabitation Agreement, a Will or Lasting Power of Attorney, please call us on 01323 727 321.
Please note, this article does not constitute legal advice.
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Please note the above is for information purposes only and is intended to be a short summary. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.
