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 Scotland has its own cohabitant law, so why are England and Wales lagging behind and continuing to rely on outdated Chancery law?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.