Living Together - But Are You Protected?

Not married but living together? Discover the legal position for cohabitants... 

The Current Situation

In England and Wales in 2012 there were 5.9 million unmarried couples living together, that is double that of 1996 and continues to rise, making cohabitation the fastest growing family type in the UK. However, contrary to popular belief, there is no such thing in law as a “common law” husband or wife, even though in practice the phrase is used by insurance companies and the like to define a situation where an unmarried couple live together.

Married couples and Civil Partners are protected by the law when they separate, however, very little automatic protection is provided to the increasingly common situation of a cohabiting couple, whether heterosexual or same-sex, who jointly invest in property.

In such a situation a couple has to rely on out-of-date trust and property laws which, when applied to these situations, are often inadequate and leave many people in a position which could cost them dearly should they separate from their partner.

Proposals for Change

There have been many attempts to introduce new laws to afford cohabitees some financial protection upon separation.

Such proposals have included:-

  1. The right to be considered for making a financial claim subject to the qualifying criteria of either having had a child together or having lived together for a certain period of time (2 years has been suggested). If this criteria is met, consideration could then be given to contribution and economic sacrifice made in order to justify a claim;

  2. The right to either opt in or out of laws providing protection.

  3. The possibility of making cohabitation agreements legally enforceable.

Whilst it has not proposed that cohabitees obtain equal rights to married couples or Civil Partners, it is expected that changes will be made at some stage that will provide far better protection than current laws.

How to protect your position in the meantime

Cohabiting couples should be looking to protect themselves now in order to provide certainty in regard to their future wishes should their relationship end due to a breakdown in the relationship or death. This can be provided in the form of a Cohabitation Agreement.

Whilst these can still be subject to judicial examination, significant case law a few years ago provided a great deal more certainty in this regard and the Courts will look upon the provisions of a Cohabitation Agreement as a strong indication of the parties’ intentions when purchasing any property or other assets, in relation to how those assets should be dealt with on separation or on death of one of the parties. Where the provisions of such an Agreement are reasonable, and provided both parties have been given the opportunity to seek independent legal advice before entering into it, the likelihood is that the Court will make an order giving effect to the terms of the Cohabitation Agreement.

Cohabitation Agreements are, these days, an essential tool to providing some peace of mind and protection for cohabiting partners. Would you enter into a financial arrangement with anyone else without having some form of written agreement? If the answer is no, don’t leave things to chance. Take some advice about having your Cohabitation Agreement drawn up.

Contact the team at Antony Clapp Solicitors to discuss your requirements on 01622 815940.