Cohabitant rights: it’s time to legislate not pontificate

Cohabitation|April 15th 2015

The number of couples living together without getting married in the UK has risen steadily in recent decades – by nearly 30 per cent over the last ten years alone. But the law in England and Wales has singularly failed to keep pace with social change and there is still no law offering cohabitants any kind of financial protection if their relationships end.

There are now over six million people cohabiting in the UK, and a disheartening number are doing so in blissful ignorance, unaware that they will not have the same rights as married couples if they split up.

In the most extreme cases, this can leave the financially vulnerable with little to show for decades of their lives. If their former partner refuses to offer them a fair voluntary settlement, there is very little they can do about it. That cannot be right. Many of my regular blog readers will doubtless respond: if they wanted full property rights, they should have gotten married. But that assumes getting married was ever an option in the first place. What if their ex, the person they loved enough to spend years of their lives with, refused to get married?

The Law Commission recommended legislation as far back as 2007 and their stance has since been echoed by the Supreme Court, but still nothing has happened. Scotland has its own cohabitant law, so why are England and Wales lagging behind and continuing to rely on outdated Chancery law?

The General Election is now fast approaching and politicians of all colours are reconsidering social and legal fundamentals, ready to promise whatever it takes to get them into power. So I’m challenging all the parties in this election to take a stand on cohabitants’ rights. It is high time this issue was taken seriously and given the consideration it deserves. No matter who ends up in Number 10, it is long past time politicians took a stand on this.

Cohabitation is not a moral issue. Some may feel that rights for cohabitants would legitimise ‘living in sin’ and erode the institution of marriage but we must realistic and accept the realities of 21st Century Britain. We must recognise that a significant percentage of the population would be financially and socially vulnerable if their relationship ended – that they would have with no legitimate redress.

Of course, any new cohabitant law would not provide settlements equivalent to those given on divorce, but simply recognise and compensate the economic loss suffered by those in a qualifying relationships. Such a person would typically be someone is financially dependent on their partner and who would be left with no access to income, property or pension payments if their ex abandoned them.

A lot of assumptions are made about cohabitation. One of the most common is that couples who live together are protected because they are in a ‘common law marriage’ but in fact there is absolutely no basis in law for this belief. No legal relationship has been created between the couple because no marriage has taken place. Another common misconception is that the length of time a couple live together will make a difference to their rights, but sadly, it does not, as the recent Graham York v York case proved all too clearly

The picture is not an entirely bleak one. As savvy lawyers will confirm, some protection is possible if you and your partner live together without a wedding ring: a Declaration of Trust, for example, could be used to clarify rights in relation to property and you could set down ownership of all shared assets in the event of separation or death in a cohabitation agreement. Such moves would be especially wise if there are children involved. I would also strongly advise cohabiting couples to make wills given the tax disadvantages of cohabitation. It is worth noting, however, that, wills do not offer any inheritance tax advantages to cohabiting couples, unlike married couples or civil partners.

So I would urge anyone cohabiting to formalise their paperwork. But far too many unmarried couples are simply not aware of these potentially very useful legal tools. At the end of the day, there is only one thing that will provide solid and reliable economic protection for the vulnerable if a cohabiting couple spit – and that is a new tailor made law: a law that would reflect the undeniable fact that cohabitation is now very much a social norm.

So I urge all parties to take a firm stand on this increasingly important issue. And I urge this the next government, whoever they may be, to follow the advice of the Law Commission and the Supreme Court and bring in a modern law for the modern age.

Author: Stowe Family Law

Comments(10)

  1. Rachel says:

    Isn’t that what marriage is for? To generate a contract and legal rights?

    People live together for all sorts of reasons and society should protect the right for people to live together without contracts and responsibility towards each other. Can you imagine the unfairness for a young entrepreneur who is saddled with the liability to maintain a University sweetheart when she decides to move on, merely because her career has taken off but he has failed to find work and has been living rent-free with her (so now feels entitled to a share in the property!)

    Many young people choose to live together in order to ‘try before you buy’. It would be an unfair society that saddles them with responsibilities. If children are involved then child maintenance is the appropriate remedy, not the creation of obligation and ties between the parties.

    Anybody who wishes to commit to a contract has marriage for that. Please don’t force those that choose not to marry into responsibilities that they never agreed to. The law is uncertain and unfair to those who do choose marriage. It would be grossly unfair to trap those that have chosen not to marry into it’s unfair obligations.

    The above article says “Of course, any new cohabitant law would not provide settlements equivalent to those given on divorce, but simply recognise and compensate the economic loss suffered by those in a qualifying relationships. Such a person would typically be someone is financially dependent on their partner and who would be left with no access to income, property or pension payments if their ex abandoned them”. This is exactly what happens in divorce! So this suggests that a cohabitee should be entitled to property, income and pension sharing! This is completely ludicrous and unfair and saddles the unmarried with all the obligations of marriage.

    This is a great idea for lawyers, but not for the general public.

  2. anonymous says:

    LEAVE THE RELATIONSHIP and find someone who wants to get married problem solved

    ” they wanted full property rights, they should have gotten married. But that assumes getting married was ever an option in the first place. What if their ex, the person they loved enough to spend years of their lives with, refused to get married?”

  3. Bolchedik says:

    This site is excellent for getting a sense of what the cunning lawyers are up to these days. It is so full of relentless propaganda.

    There can only be one reason for advocating more excessive state intrusion in people’s lives. Money.

  4. JamesB says:

    I was going to write a long post, but I would be repeating what I said on earlier post so I wont. I will only answer Rachel’s (and Andrew’s on the last post’s) point, people often don’t like the look of marriage as the risk of the dodgy divorce law are perceived as too high and pre nups not valid in this (England and Wales) jurisdiction (perception is reality). So I support the call for better law in this area to help people live together with some protection to help them grow together, and have children if they want rather than something like on the Jeremy Kyle show with some men acting as tom cats and some benefit cheats, reducing the couples penalty, etc. Talking about politics and elections, I remember the Conservatives talking about ending the couples penalty (less benefits if announce to government you are in a relationship) last general election, sadly it seems they have given up on that as we don’t seem to hear them say much on that (or anything else of much interest to me) anymore. Need to go now as am late for an appointment, comment needed to be rushed due to that cheers.

  5. Andrew says:

    “What if their ex, the person they loved enough to spend years of their lives with, refused to get married?”

    Nobody is forced to stay in a marriage, still less in a non-marital relationship.

  6. Nordic says:

    Dear Marilyn,
    Seems to me that your main argument for imposing matrimonial law on those who have decided not to join in matrimony is that cohabitants simply are not aware of the legal instruments already available to them. Would you also argue that anybody who fails to buy home insure should be indemnified against the consequences of that failure, and hence that government should legislate away the right to be uninsured? You may counter that most people know the legal instruments available to ensure a home, but then why are you not simply promoting an information campaign for cohabitants? Why do you want to remove the right of people to live together as they choose?
    .
    I lived as a cohabitant for years with the mother of 2 of my children. We would have liked to marry, but did not because of English family law. If your proposal had been law, we would have had to leave the country. For what you are proposing is not modern law. What you are proposing is to extend the reach of a chaotic and outdated divorce process, which main purpose is to generate money for lawyers. There is nothing modern about that.

  7. Stella says:

    I have just read the following update on the cohabitation bill:

    Second reading – the general debate on all aspects of the Bill – took place on 12 December.
    Committee stage – line by line examination of the Bill – is yet to be scheduled.
    The 2014-15 session of Parliament has prorogued and this Bill will make no further progress.

    The final line concerns me…

  8. Andrew says:

    Stella, all Bills are lost at the end of the session except some Government Bills and some Private Bills (not the same thing as Private Members’ and Private Peers’ Bills).

    This was never going anywhere. Major social reforms (if this is a reform!) are not carried out by Private Peers’ Bills not backed by Government. Such Bills are a way of ventilating the issue.

  9. Andrew says:

    A Government Bill is the only chance. Or risk, depending how you look at it.

Leave a Reply

Close

Newsletter Sign Up

For all the latest news from Stowe Family law
please sign up for instant access today.

Privacy Policy