Cohabitation

Sarah Crilly, Partner in the Family Law team at Ward Hadaway, looks at the current state of the law surrounding cohabitation.

According to the Office for National Statistics, there are just under 3.2 million cohabiting couples in the UK in 2015. More and more couples are choosing to cohabit rather than get married.

Many people are still under the misconception that so-called “common law marriage” exists. This misconception is causing huge problems for people who believe they have the same legal rights as married couples.

Currently the law does not recognise cohabitation as it does marriage. If parties separate, even after residing together for long periods of time, they are not automatically entitled to any financial remedy.

Instead, they are restricted to claims limited only to property and only in those cases where a party has contributed to the value of the property. Such property disputes are complex and expensive and have to proceed by way of civil litigation under a piece of legislation known as the Trusts of Land and Appointment of Trustees Act 1996.

Where parties have children then it is possible to claim maintenance for children via the Child Maintenance Service in the same way married couples can, but if there is any particular need such as housing that the children may be about to lose out on as a result of the breakdown of a relationship, then the parties can resort to Schedule 1 of the Children Act 1989 for provision. However, these cases tend to involve parties who have substantial assets. It does not help the middle income and low asset cases.

It is not possible for the financially poorer party to claim maintenance for themselves and if they have not contributed anything to the value of the property where that property is held in the sole name of the other party, then they are not entitled to any type of financial remedy.

The Cohabitation Rights Bill was introduced to try and alleviate the problems. It has had its first reading in the House of Lords but the second reading is yet to be scheduled.

The proposals are that where cohabitants have lived together as a couple for a continuous period of at least three years, even if they do not have children together, they will be afforded some legal protection. Provided they meet specific eligibility criteria, they can apply to the Court for some form of financial settlement Order.

The Bill proposes that legislation should be introduced so that the Court can make various Orders including lump sum payments, transfers/ sales of property and pension sharing Orders.

The Bill also suggests that cohabitants have certain rights following the death of the other cohabitant and can enable a surviving cohabitant to make claims upon the death of the other.

If this bill becomes an Act of Parliament, the landscape for cohabiting couples will be changed substantially. Parties embarking on living together arrangements will have to consider equivalent protection to couples embarking on marriage. Instead of pre-nuptial agreements, cohabiting couples will be able to enter into opt-out agreements but like pre-nuptial agreements they will in certain circumstances be able to be varied by the courts.