47% of cohabitees are unaware they lack rights – are you one of them?
Last week, Resolution (a community of family justice professionals) published the results of a nationwide poll surveying cohabiting couples.
An unsurprising yet concerning 47% of those cohabitees surveyed were unaware that the law does not recognise their relationship (regardless of whether they have children or not) and as such, they have very limited legal protection should they split up with their partner.
The survey undertaken serves to highlight the growing need for reform in this area of the law.
As already detailed in our article ‘Do I need a Cohabitation Agreement?’ (January 2023) there is an assumption within the UK that a concept of common law marriage exists between couples who have been together for a long time and are living in the same property.
However, legally, this does not exist, and it is alarming that such a large proportion of cohabitees are still unaware of this.
The current position
Unfortunately, cohabiting couples do not have the same level of protection as married couples. Financial provision for unmarried / cohabiting couples is governed by case law, together with a piece of legislation known as TOLATA (Trust of Land and Appointment of Trustees Act 1996). This is irrespective of the length of the relationship and the difficult financial circumstances one party may be in.
It is unsurprising therefore, that of a third of the poll surveyed, believed they would be left in financial hardship should they split up with their partner.
The reality of the situation is that most claims are limited to any jointly owned assets (i.e., a property / joint bank accounts) and will be determined in accordance with their legal and beneficial interests.
Things can become more complicated if only one person owns the property. Unfortunately, equity follows the law and beneficial interests reflect the legal interests. Accordingly, where there is sole legal ownership, the starting point is that there is sole beneficial ownership. However, this presumption can be rebutted, but it is often very fact specific, and you would need to take independent legal advice.
What pre-emptive steps can I take?
It is important that a cohabitee protects their interest in the relationship from the outset, should this eventually breakdown.
A way to do this is by entering into a Cohabitation Agreement. This is a written agreement, setting out the intentions of each party in respect of their financial positions, should the relationship end. Whilst they are not legally binding, they can often be persuasive, and show the parties intentions which can be helpful later down the line.
For more information on Cohabitation Agreements, please contact our specialist Family Solicitors at Maguire Family Law who will be able to discuss this with you in detail and assist with the preparation of such an agreement.
It is also strongly advisable to contact a private client solicitor, to either review or make a Will to account for any property which you may have purchased with your partner.
What if I have children with my cohabiting partner?
Whilst an unmarried party is not able to raise a financial claim in respect of themselves (save for the above) there is legal provision to meet the financial needs of a child from a cohabiting relationship.
This is governed by Schedule 1 of the Children Act 1989 and there are various types of applications which can be made to meet the children’s needs, which we can discuss with you in more detail.
Whilst MP’s, Resolution, STEP, and The Women and Equalities Committee (to name just a few) have all urged the government to reform the law and ensure protection for cohabiting couples, the government are yet to announce any intentions to do so.
For the time being, the government’s main focus still appears to be on divorcing couples, with the Law Commission’s scoping paper on financial remedies on divorce due in September 2024, followed by a full review.
It seems likely therefore, that there will be a long delay before a change in the law for cohabitees is expected.
Whilst the current law is not reflective of a society in which more and more couples are choosing to cohabit rather than marry, it is important that cohabitees take pre-emptive steps to protect their interests. Maguire Family Law are specialist Family Law Solicitors who can advise you further.
If your cohabiting relationship has ended, our specialist solicitors can advise you on the options available with a view to resolving matters.
For specialist advice on any family law related issue contact Maguire Family Law by email: james.maguire@family-law.co.uk or telephone:
