Did you know that 47% of the public aged 18-34 think cohabiting couples have the same legal rights as their married counterparts? The truth is that they do not.
There are currently nearly six million people who live together in the UK without being married or in a civil partnership. Cohabitees are the fastest growing family type in the UK, and yet, in England and Wales, these people have little or no legal protection if they separate.
At Coles Solicitors, we see many clients who have found them self in some tricky situations from living as a cohabiting couple. One client called Joy, lived with her partner Norman for 18 years. Norman was separated from his wife but not divorced. He had also not updated his Will. Joy and Norman owned their house as tenants in common which meant that when he died suddenly of a heart attack, his half of the property, which had been valued at £320,000, passed not to Joy but to his estranged wife Maureen.
Had Norman divorced Maureen, obtained a suitable court order and updated his Will he could have ensured that Joy would be financially protected in the event of his death. Joy could not afford to buy Maureen’s half from her so she argued that the court should award her Norman’s half of the property to provide her with financial security.
The judge ruled in her favour and recognised that she had lived with Norman as “husband and wife” for many years. Even though this is a victory for Joy she has commented that it was traumatic that this level of serious relationship is not recognised by law.
She stated “I hope my situation raises awareness for others to consider their own financial position in relation to their partner and consider whether they need to take advice to protect each other in future.”
Common Law Marriage
Many non-married couples believe that if they are in a committed relationship for many years then the law will recognise them as common law husband and wife. The reality is that this is an urban myth and there is no such thing as a common law marriage. Couples who live together but are not married should seriously consider entering into a cohabitation agreement before moving in together. Any cohabitation agreement should set out who pays for the household bills and how the property should be divided should the relationship break down.
Currently, the court does not have the power to make the same financial orders for cohabiting couples as it does for married couples. This means that either party can end their relationship without the need for court intervention. This could therefore leave one party struggling financially if the relationship breaks down.
Just as important is ensuring that their Wills are up to date to reflect their current wishes as to what should happen to their property in the event of their deaths. In the absence of a Will, unmarried couples unfortunately have limited rights over their deceased partner’s estate.
In addition, co-habiting couples should put some thought into how they own their property. On completion, couples will be given two ownership options, tenants in common or joint tenants. If a property is owned as joint tenants, the doctrine of survivorship applies and the property automatically passes to the survivor. If a property is owned as Tenants in Common than on the death of one party, their share will pass to their next of kin and not to the co-owner. As unmarried couples are not currently recognised as each other’s next of kin this means that in the absence of a Will, the surviving partner could end up co-owning their property with their deceased partner’s mother, father, brother or sister.
Members of Resolution
We are proud members of Resolution, a community of family justice professionals who work with families and individuals to resolve issues in a constructive way.
Resolution are calling for a legal framework of rights and responsibilities when unmarried couples who live together split up, to provide some legal protection and secure fair outcomes at the time of a couple’s separation or on the death of one partner. Other countries, such as Australia and Canada, and closer to home Scotland, recognise these relationships and provide legal protection. The Law Commission has recommended changes in this area.
Resolution proposes that cohabitants meeting eligibility criteria indicating a committed relationship would have a right to apply for certain financial orders if they separate. This right would be automatic unless the couple chooses to ‘opt out’.
The court would be able to make the same types of orders as they do currently on divorce, but on a very different and more limited basis. Awards might include payments for child care costs to enable a primary carer parent to work.
As a solicitor who deals with both Family matters and Wills and Probate matters I would urge anyone who is living with their partner to make sure that they are legally protected. If anyone is unsure about where they stand, they should seek the advice of a solicitor who can put their mind at rest.
To speak to a member of our family team, please call 0800 160 10 10 or email firstname.lastname@example.org