Cohabitation law ‘severely deficient’, says firm

Family and Property Litigation lawyers at Birketts claim that the law is “severely deficient” in providing adequate protection to those persons who do not have the state “legitimise” their relationship by acquiring marital or civil partnership status.

This comes as recently reported in June when the government was urged to rethink its response to – and, in many cases, rejection of – the cohabitation law reform proposals put forward by the Women and Equalities Committee last year.

The report highlighted the lack of legal protection afforded to cohabiting couples, with Resolution describing their position as one of “legal limbo”.

Currently, one in five couples are living together in a cohabiting relationship in England and Wales – the equivalent to 3.6 million couples – making cohabiting couples the fastest growing type of family.

Data from the Second Report of Session 2022-23 Women and Equalities Committee Report shows that cohabitation is often not an informed decision, with 46% of people in England and Wales believing that there are automatic rights akin to marriage or a civil partnership on separation.

55% of people in England and Wales wrongly believe there to be extensive financial remedies akin to marriage if the household has minor children.

Francesca Skakel, Solicitor in Birketts’ Family Team, said:

“The only relationships that currently benefit from the full legislative powers to grant financial remedy on separation are those who are married or have entered into a civil partnership. This is an increasingly smaller proportion of the population.

What we are seeing is a significant lack of awareness of this risk. People are not ‘opting out’ of the protections of marriage or civil partnership but falling unaware into a gap of legislation. Rights are limited to complex property issues and the narrow scope of financial remedy orders for the benefit of children.”

Skakel stated that it is hard to see that the current law is “fit for purpose” when it is “so at odds with society’s expectations about the level of financial protection for those in enduring relationships”.

Stephanie Butler, Associate Solicitor in Birketts’ Property Litigation Team, said:

“The law of TOLATA (Trusts of Land and Appointment of Trustees Act 1996) cares little about fairness. Where a cohabiting couple is unmarried, and only one of them is on the title deeds of their shared home (which is often the case), the non-legal owner has no right to a share in the sale proceeds unless the existence of a formal or informal trust can be proved.

Very often, the non-legal owner will not be able to prove the existence of a trust, and they will be entitled to nothing from the sale proceeds. The law should be altered, so that unmarried cohabiting couples have similar rights to married couples.”

If a cohabitee does not want to enter a formal marriage/civil partnership, Birketts recommends that they look at agreeing terms for a cohabitation or separation agreement, which can partly protect their financial position.

Similarly, unmarried couples may wish to consider entering into a declaration of trust that records their respective shares in the equity of the property.  This is often done alongside a cohabitation agreement, which can deal with the broader financial and practical aspects to the relationship.

Francesca Skakel added:

“While many fear these conversations might be awkward, it is much better to have them now rather than when it is too late.”

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