Cohabiting couples are the fastest-growing family type in England and Wales, with research revealing that the traditional household of a married couple and children is giving way to cohabiting couples. Despite this, we are yet to see any law reform relating to cohabiting couples.
What is the current law on cohabitation?
The simple answer is- there isn’t one! The legal system still allows for the wealthier party in a relationship to simply walk away after what may have been many years together leaving the financially weaker party in difficulty. The only way in which the financially vulnerable cohabitee can pursue a claim for a share of assets in the other party’s sole name is to rely on complex trust principles in an attempt to establish a beneficial interest.
Scotland and Ireland have introduced legal remedies for cohabiting coupes whilst over half of EU countries have adopted laws on cohabitation. There is no question about it- we need to follow suit!
There is no such thing as ‘common law marriage’- you may have lived together for a long period of time and have children together but that does not automatically give you any rights and responsibilities.
What can I do to try and protect myself now?
If you want to outline your rights and obligations towards each other and formalise aspects of your status within the relationship, you should have a cohabitation agreement drawn up. Some advantages of a cohabitation agreement are: –
• Clarity. You can make it clear to one another from the outset what property belongs to you alone and what property is to be shared.
• Certainty. You can agree at the outset how your finances will be divided if you later separate. This should save you both the uncertainty, time and stress of litigating about your finances.
• Protection of assets. You can protect assets from one another, such as inherited assets, an interest in a family business, gifts received from a third party or property acquired before the cohabitation.
• Provision on death. The cohabitation agreement can set out what happens to your assets upon death.
As with everything, there are some disadvantages of a cohabitation agreement: –
• Uncertainty about enforceability. There is uncertainty about whether the terms of a cohabitation agreement will be upheld and enforced by the Court. However, if drafted properly, the scope for arguing about the enforceability and validity of the agreement will be reduced.
• Changes in circumstances. A cohabitation agreement cannot predict what will happen during the cohabitation, and significant changes may occur. If the agreement does not cover the changes, it will lose its relevance and is unlikely to be upheld in the Court.
It is about time the Government takes responsibility and addresses the outdated law.
Krista Enziano is a Solicitor in the Family Department at O’Donnell Solicitors. For more information or a second opinion, please contact her at 01457 761320 or email firstname.lastname@example.org