As the Government rejects the latest calls for cohabitation law reform, Victoria Cannon, Team Leader Partner in Stowe’s Cardiff office, looks at how the current legislation puts unmarried couples at a disadvantage.
Over the summer, the Women and Equalities Group from the House of Commons urged the Government to end “legal limbo” for cohabitees, by strengthening cohabitation rights and responding to recommendations made by the Law Commission.
Despite this, in November 2022 the Government rejected the call to reform law for cohabiting partners adding that they must first consider wedding and divorce law as a baseline before it can consider cohabitation law reform.
So where do delays leave cohabitees?
Cohabiting partners make up the fastest growing type of family, with over 3.6 million partners cohabiting in the UK. Declining calls to improve protection for unmarried couples – and keep step with those afforded to married couples – inevitably risks leaving a growing number of adults and children vulnerable in the event of a relationship breakdown.
It’s widely accepted that cohabitation law is outdated and that unmarried couples are in desperate need of a dedicated legal provision. So, what remedies are in place?
The family home
During relationship breakdowns, questions about cohabitation property rights such as “who should live in the home?” and “how should the equity be shared if a specific agreement is not in place?” regularly arise.
Victoria says “Our team at Stowe Cardiff often see disputes arising around property ownership because:
- One person owns the home. For example, if one cohabitant had a poor credit rating on purchase that would have adversely impacted mortgage rate or approval
- Unequal contributions when purchasing the property. For example, one person may have had more savings for a deposit
- One party claims more equity should be given to them upon separation. This can occur for a variety of reasons, for example when one party paid for improvements to the home that add value to the property.
Trust and case law can often provide the remedy but the outcome is far from certain.
Cases turn on their facts and although case law can provide guidance, if the intention of the parties is not clear-cut, and in the absence of express intention, difficulties can arise in relation to the burden of proof.
Cohabitation and Child Law
One aspect of separation that is not linked to the status of a relationship is when considering who should care for any children. The law does not distinguish between married and cohabiting couples when determining who children should live with after separation, and how much time the children should spend with the other parent. This is always determined by what is in the child’s best interests.
Disputes relating to Child law can be considered through mediation and/or court, under the Children Act 1989.
How can cohabiting couples protect themselves?
Thankfully, there are ways to protect the interests of you and your partner without changing your marital status.
Cohabitation Agreements
A Cohabitation Agreement is a comprehensive and bespoke contract that formalises what cohabiting couples wish to happen in the event of separation, or even death. It sets out mutually agreed plans for jointly and individually owned assets, property, finances, child arrangements, and any other personal arrangements that couples wish to include.
As well as providing security, Cohabitation Agreements are designed to:
- Provide financial protection for both parties
- Establish responsibility for jointly and individually owned assets including property, pensions and savings
- Define provisions for children
- Agree how financial obligations such as rent, mortgage and other household bills will be maintained
- Offer some certainty should the future look different to how you expected.
Couples can use a Cohabitation Agreement to set out clear responsibilities and ownership for property and finances from day one. However, it is never too late. Cohabitation agreements are equally beneficial for unmarried couples that already live together and want to formally record their wishes.
Declaration of Trust
A Declaration of Trust is a legal document that specifically relates to property and can be created during or after the purchase. It confirms the proportions in which two or more individuals own a property or land.
Every Declaration of Trust is different and reflects the unique agreement made between the parties as to how the net value or equity in the property would be split in the event of a future sale, regardless of financial contributions.
The advantage of a declaration of trust is that it provides all involved with certainty by formally recording their agreed wishes and mitigating the risk of future disagreements.
The benefit of a will
It is also important to make a valid will. Writing a will helps to ensure there is a legally binding process and set of decisions regarding your estate after you die. If you were to die without leaving a will, under the rules of intestacy, unmarried cohabitees do not inherit.
Protection for cohabitees
Victoria adds “For all these reasons and more, cohabitants are advised to protect themselves by establishing their express intentions for the event of a potential future separation, right from the start of the relationship. While we appreciate that entering into these agreements may not be the most romantic gesture, in the event of a relationship breakdown, they are invaluable.”
By actively discussing your wishes now, and formally determining shared plans and objectives, you can ensure equal protection for both you and your partner, and significantly help to reduce the potential for disagreements and financial insecurity in the future.
Useful links
What rights do cohabiting couples have?
A guide to cohabitation agreements
Cohabitation and inheritance – what are unmarried couples entitled to?
Get in touch
For more recommendations for unmarried couples or information about cohabitation agreements please do in touch with our Client Care Team using the details below, or make an online enquiry.
OK… so what’s more important… a father having parental responsibility for a child fathered out of wedlock or a cohabiting woman having an equal or greater share of property when she has contributed significantly less towards the purchase?
Perhaps reform to cohabitation law should be delayed again until reform to parental rights has been addressed. With protections such as “constructive trusts” in place which can be decided upon at the discretion of a judge on the basis of an unproven verbal exchange, I personally feel there’s little need to address cohabitation law… there appears to be more than enough protection in place to protect cohabitating women. It is men that are more often disadvantaged but that doesn’t support the feminist, women are victims narrative.