The recent King’s speech outlined the major areas of law reform for this government but noticeably absent was any mention of reform for the law relating to cohabiting couples, despite the undeniable changing face of families in the UK today.
Figures released by the Office of National Statistics (ONS) in May this year confirmed the biggest increase in the type of family units in the UK was seen amongst cohabiting couples, spiking from 1.5m in 1996 to approximately 3.6m in 2021 (the last data available) – a 140% jump. More children are now born to unmarried parents than to married parents (or those in a civil partnership).
An opt-out system
A number of attempts to include reform and alter the rights and obligations relating to cohabitation have been made, but each one has so far been dashed. While serious consideration and collaboration will be needed to find a model that works, there are a number of options. For example, an ‘opt-out’ system is favoured by many as providing the best balance of individual freedom and legal protection. Under this arrangement, couples who live together for a pre-defined period, say two years, would be granted equal rights equivalent to those enjoyed by married couples, with the option available to withdraw from the system at any time.
The common law spouse myth
However, in the absence of any such reform and with the increase of cohabitation it becomes more important than ever that those in a cohabiting relationship (whether opposite or same sex) fully understand the implications and legal consequences. In particular, the usual assumption that there are special rights belonging to a “common law husband” or “common law wife” are misleading and nothing more than myth.
Whilst married couples have obligations to each other both during and after marriage, cohabitants have very limited rights against each other. On the breakdown of a cohabitation relationship there is no obligation for one partner to pay maintenance to the other, nor to provide housing for the other and the law falls back on quite unsuitable property principles to decide how any jointly owned property assets should be divided.
There are obligations between cohabitants that flow from having children, namely the need to support them, maintenance obligations and depending on the family’s financial position to provide them with suitable housing and other expenses. These rights are very different from those that flow for a spouse following a breakdown of a marriage, and are centred around the needs of the child not the ex partner.
Cohabitation Agreements
In the same way that couples entering into marriage are often advised to consider entering into a prenuptial agreement (PNA) couples thinking about cohabitation, particularly where such relationships involve children or the acquisition of jointly owned property would be well advised to consider entering into a Cohabitation Agreement.
A Cohabitation Agreement can set out the basis on which the couple will fund the joint expenses of their relationship and the basis on which they own any property, both during, and if relevant, after the relationship ends. It can deal with:
- who will have responsibility for paying the mortgage or rent?
- will they contribute to a Joint Account?
- who will pay the main utilities and outgoings or how much each partner will contribute?
- how any property owned by the parties jointly should be divided on the breakdown of the relationship; will it be equal notwithstanding one or other has been responsible for meeting the mortgage?
- in the event of a separation will one partner be able to buy out the interest of the other (if so setting out how this interest might be valued)?
- how the parties will deal with any liabilities on separation, joint credit cards and bank/savings accounts
- how the parties will deal with any monetary gifts from their families that have been used jointly
- how school fees, child care or other expenses relating to their children will be met.
Cohabiting couples should be also advised to consider having a Deed of Trust to confirm their respective interests in any property they own together and how the proceeds might be divided on sale but a Deed of Trust is unlikely to assist on the regulating the day to day expenditure obligations and responsibilities both during and on separation.
A cohabiting couple may also be well advised to consider how to deal with their responsibilities towards any children they have. An unmarried mother automatically has parental responsibility (PR), unmarried fathers must acquire PR in certain circumstances, including having their name entered on the child’s birth certificate or by agreement after the birth in which case a parenting agreement may assist.
Inheritance considerations
Lastly, cohabitation does not convey the same entitlement to inherit from a partner on their death. Even a long term cohabitant has no automatic right to inherit property from their partner. The importance of making a Will cannot be over estimated, particularly where children are involved. A cohabiting partner left without a Will and where the partner’s estate is dealt with under the laws of intestacy is faced with the unenviable task of bringing a claim under the Inheritance (Provision for Family and Dependants) Act
- Litigation at such time can be costly, both emotionally, and financially, and is often not an option for many cohabitants.
Given the state of the law at present cohabiting couples can be assisted by taking pre-emptive steps to ensure what they want to happen and consider to be “fair” is actually matched by the reality in the event of any split. Until any reform is confirmed, it’s a case of self help and that old cry of ‘‘Education, Education, Education!’’
