Cohabiting couple families on the rise

Cohabiting couples are the fastest growing family type in the UK according to the latest data from the Office of National Statistics. The number of cohabiting couples has doubled since 1996 but the law has not kept pace with these developments. It is still a widespread belief that if a person lives with their partner for long enough, they will acquire the same legal rights as a married person. This is often referred to as common law marriage but it is a myth.

Unfortunately there are stark differences between what a married and unmarried person can claim should their relationship break down. A cohabiting person may be able to claim a share of property but only in limited circumstances. There is no equivalent of the sharing principle, which applies to married couples, stating that the starting point is an equal division of the assets.  This can lead to disastrous outcomes, for example where one party retains the money and property in their sole name leaving the other party with no right to claim a share of it.

Having children can give rise to claims against the other parent/former partner for their provision. Courts can top up child maintenance payments and order the other parent to pay school fees or provide housing for the primary carer and child. Such provision ceases upon the child becoming independent, which means the primary carer parent may be no better off.

The Cohabitation Rights Bill is slowly making its way through Parliament. If passed it would give cohabiting couples similar rights to those of married couples save that cohabiting couples could choose to opt out of financial orders being available if the relationship ends. With the general election in May, it remains to be seen whether and when this bill will be passed.

In the meantime, cohabiting couples should consider doing what they can to achieve a degree of certainty and protection in the event their relationship breaks down. They can enter into a Declaration of Trust, which sets out how property is held and in what proportions. Alternatively they can execute a Living Together Agreement, which deals with how money and property will be divided if a relationship ends. This agreement, also known as a Cohabitation Agreement, is not legally enforceable but if entered into properly with the benefit of legal advice, is likely to be upheld by the courts.