Cohabitees: are you protected in law?

The fastest growing family type is cohabiting families. Unmarried couples, with or without children, form the majority of family arrangements. However, many couples living together believe they have a common law husband or wife status so are fully protected in law . A first meeting with a family lawyer following the end of the relationship can quickly dispel that idea as there is no such thing as ‘common law husband or wife.’ So what does this mean, especially if one of you is the bread winner ?

Risky business

For many years the legal world has had to advise those at the end of cohabiting relationships that what they think they should be entitled to and what they are entitled to are not very often the same thing. There is no ‘spousal’ maintenance nor pension share for a cohabiting couple. There is also no automatic consideration of the housing of any children when it comes to dividing up the property the couple lives in. The playing field for married and unmarried couples and families is not a level one.

It is often women in these relationships who suffer most financially when they end. The working mum who is living with her partner but has never got round to having her name on the property ownership or tenancy has no legal right to stay when things go wrong. There is also no right for the housing needs of the children to be considered first legally when looking at living arrangements. This is an incredibly vulnerable position to be in.

Equally, giving up a professional role to take the role of stay-at-home mum can be compensated at the end of a marriage if that decision was made by both parties to it with the intention of the family benefitting. This is not the case at the end of a cohabitee relationship where one person, often the woman, has given up her paid role or taken reduced hours or a less well paid role. This distinction in how the law views this decision at the end of the relationship is dictated by a marriage certificate, which in times when there are more and more cohabitee families does not really seem fair.

Another, unfortunately, commonplace issue is when the partner dies in a property which was not co-owned and without a will. The cohabitee who remains has no legal right to stay and is not automatically next of kin. This leaves them at the mercy of whoever is the next of kin as to whether they can stay in their home and, if so, for how long. Upon marriage and in the absence of a will, there would automatically be a right to stay. Many people are blissfully unaware of this until the sad event takes place.

Changes

In light of these distinctions, MPs on the Women and Equalities Select Committee** has recently completed a report on Rights of Cohabiting Partners which was published in August 2022. They looked at the disparity between unmarried and married legal positions and how often it is women who financially suffer the most.

Consideration was given to the Law Commission’s recommendations concerning reform and a proposed Cohabitation Bill. In July 2007, the Law Commission published a report, Cohabitation: The Financial Consequences of Relationship Breakdown which did not consider that cohabitants should have access to the same remedies as married couples and civil partners. Instead, the report recommended a new bespoke scheme of financial relief upon relationship breakdown based on the financial and non-financial contributions that the parties had made. The report suggested a type of opt-out scheme for those who did not wish to come within the proposed statutory changes. It is this opt-out approach which the Committee gives its support to because, despite the fact that the Law Commission’s report was completed in 2007, the proposals within the report are still felt to reflect the most suitable position between not undermining marriage and yet affording better and clearer legal rights to unmarried couples. The expectation from the Committee is that by 2023-2024 there will be legislation to be scrutinised by parliament with the aim of achieving that balance.

There is also pressure from family law bodies such as Resolution for there to be a government campaign in light of these findings to publicise the legal differences as many are not aware of the legal vulnerabilities of being unmarried and living together, not just on separation but also on death. Such differences of legal status are not necessarily known until it is too late.

In the meantime?

Anyone considering living together, whether as a joint property owner or not, should take initial legal advice on what that means. Many firms, including ours, offer a fixed-fee meeting to give initial advice about the legal position before people start living together so they can avoid future issues. Cohabitation Agreements can document how you intend your arrangements around living together to work, for example, when it comes to paying bills and household expenses. They can also make provision for who gets what on separation. These agreements can provide some clarity and protection from an early stage.

The other aspects to discuss and to take advice on are pensions, life insurance and wills as well as Lasting Powers of Attorney. These can help to address the areas that there is no automatic right to when you are not married. There is no legal ability to be considered next of kin, for example, when your partner is hospitalised if you are unmarried. These areas are the ones we all hope will never impact us but, if they do, taking steps to understand your legal position and to document those steps now, can avoid later pitfalls. Until the law recognises that there is a need to redress the balance, the above small individual steps can help to do so.

Female forward planning is pertinent as a cohabitee and until the law catches up, protecting yourself is the best way forward.

*Karen Holden is founder of A City Law Firm. 

**Update: in November, the Government rejected the Women and Equalities Committee recommendation to reform cohabitation law, saying existing work on the law of marriage and divorce must conclude before it can consider changes to the law in respect of the rights of cohabitants. The Women and Equalities Committee says that decision relies on “flawed logic” and “risks leaving a growing number of cohabitants and children vulnerable”. The Government also stated it has no plans to extend the inheritance tax treatment of spouses and civil partners to cohabiting partners, but would keep it under review. It partially accepts two recommendations on improved guidance and support to make cohabitants more aware of their legal rights.

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