Cohabitation and the law - steps for couples to protect their family

By Lenore Rice

Living together, or cohabiting, is on the increase with approximately 3.3m cohabiting couples in Northern Ireland and the rest of the UK. That equates to one family in five making it the fastest growing family type. Couples choose to cohabit and forgo marriage for a number of reasons, however most don’t realise the legal distinction between the two, and more importantly the different rights attached to marriage compared with cohabitation.

There is a common myth that if couples live together for long enough, or have children together, they become ‘common law spouses’ and automatically develop legal responsibility to support each other financially. However the reality is that when a cohabiting couple separates the courts cannot divide finances or property between the two, just because it might be fair.

 

Cohabitation: The current Law

There is a campaign to reform the law to bring it into line with the increasing social shift away from marriage and towards cohabitation, and to provide protection to cohabiting couples when they separate or if one of them dies.

There essentially is no current law on cohabitation, so in the case of a separation or death for example, the law will treat a cohabiting couple as two separate individuals, and no account is taken of their relationship and history of financial support in order to determine a fair outcome between them. This position does not change no matter how long a couple has lived together, how connected and merged their finances are, and whether or not they have children together. That being the case, there are a number of obvious problems that can arise.

 

Finances and Property Children of a cohabiting couple – separation/death of a parent Non-married parents dohave financial obligations towards any children they may have, but they are not as automatic or as enshrined in law as the obligations a married parent has in the event of a separation. In the event of a separation, a former cohabitant may be able to apply for an order for financial provision on behalf of their children under Schedule 1 Children Act 1989, and this may take the form of transfer or settlement of property orders, periodical payments or lump sum orders. In the event of a death, children can inherit under the rules of intestacy regardless of whether there parents were married. Rights of a partner in the event of separation/death Co-habiting couples do not have any financial responsibilities/obligations to each other in the event of a separation. There is no automatic entitlement to financial support even if it is evident that one partner supported the other who perhaps gave up or reduced work to raise children. As such, that person could find their financial security significantly compromised, potentially without a home and with no access to pensions or savings.

Another difficulty is that it is not always clear who owns what when a relationship ends. Whereas married couples who divorce can have their property legally divided, unmarried couples without proof of ownership do not have the same rights. For example, James is named on the deeds to the house and Rachel is not, but she has contributed by paying food and utility bills for years. If they split up Rachel has no legal protection. In the event of the death of one of the partners, the rules of intestacy only recognize married or civil partners. It is therefore essential that cohabiting couples make a Will as they cannot inherit under the rules of intestacy, which will be applied if no valid Will is in place. It will not matter if it is otherwise evident that their partner would have wanted them to receive some or all of their estate. A surviving cohabitant may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 but cohabitants are treated differently than a spouse.

 

WHAT PROTECTION IS AVAILABLE?

It is essential that co-habiting couples take action to protect themselves and their family in the way the law doesn’t. Some of the steps they can take include:

  • A cohabitation agreement setting out both partners’ intentions around property, finances and how they would support their children if they separate.
  • Make a Will to ensure your partner is cared for in the event of your death, and consider taking out life assurance.
  • If purchasing a property together, ensure both will be registered owners of the property, and enter into a declaration of trust if parties intend to own in unequal shares.

If there are other more complex issues involved in the relationship, such as a business interest, it would be recommended to receive legal advice. Contact one of our family law solicitors specialising in Cohabitation at Wilson Nesbitt by clicking here.