Resolution is a national group of family lawyers who are committed to finding non-confrontational solutions to deal with issues following a relationship breakdown. Resolution members follow a code of good practice which aims to resolve issues in a constructive way. Resolution have just announced that from 25 November to 29 November 2019, they will be raising awareness of the rights of cohabiting couples.

At Geldards, we believe it is important for couples to be aware of their rights. Ahead of Resolution’s awareness week in November we seek to highlight some of the risks to cohabiting couples and the steps couples can take to protect themselves and their family.

Cohabitation

Living together (cohabiting) is becoming more and more common. According to the Office of National Statistics, cohabitation is the fastest growing family type in the UK. Today cohabiting couples represent around 1 in 5 families in the UK. More and more people are choosing to live together and not marry, however most people don’t realise that they are leaving themselves unprotected.

Living together for any amount of time does not provide any automatic legal protection regarding property or finances should a relationship break down. Quite simply, the law does not provide protection for cohabiting couples.

Many people mistakenly believe that if they live together long enough or have children together, they are protected by “common law marriage”. This is a myth. There is no such thing as a common law marriage in UK law. Cohabiting couples do not have the same rights as married couples.

There have been attempts to change the law and to protect cohabiting couples, however, there has been no Government action to date.

Cohabiting couples are not legally obliged to support each other financially. It is quite possible for a couple to live together for years, to have children together and for one party to leave the relationship, leaving the other party with no legal entitlement or financial help. Cohabiting couples have no recourse to “spousal” maintenance, even if they have children. They may be able to claim some limited support indirectly if there are children but this is an uncertain and expensive process with no guarantee of success.

Cohabiting partners are not automatically next of kin. This means that if anything happens to one party, the other does not automatically have a right to a share of the property or possessions. If the house is in the sole name of the deceased, then they may not even have any right to remain in the property and risk becoming homeless. They could even be excluded from the hospital/funeral by the deceased’s family. At what is already a stressful time, things can be made worse by these added problems.

What can you do to protect yourself?

Couples should take action to protect themselves and their family. For example;

  • A Cohabitation Agreement – this is an agreement which will set out both parties’ intentions around property, finances and how they would support their children if they split up. It can be a completely bespoke agreement and can cover any issues that the parties agree on (even for example who would keep the family pet). It is advisable to have the document professionally drawn up and a family solicitor can help with this.

  • A Declaration of trust – if acquiring property jointly, parties should ensure both names are on the deeds to the house and enter into a declaration of trust if they intend to own in unequal shares. If one partner’s parents provide a loan for the deposit for example, a declaration of trust can record this contribution and ensure they are paid back if the couple split up and the property is sold.

  • Life insurance – parties should make provision for life insurance to cover them against the financial consequences of the death of a partner.

  • A Will – parties should make sure they have up to date wills. A decision will need to be made as to who owns what and what each party is entitled to if they split up. Unless specifically named in a will, or if a valid will has not been created, a cohabiting partner is not entitled to share in or make claims on their deceased partner’s estate.

Although it may be an awkward conversation to have, it’s far better to discuss these things now and make provision for if the relationship doesn’t work out, rather than getting a nasty shock that you are not in fact entitled to what you thought.

At Geldards, we have acted for many cohabiting couples and helped them in these situations. If you would like to discuss matters with us, please do not hesitate to contact a member of our Family Team.

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Sarah McLoughlin

SARAH MCLOUGHLIN

Solicitor, Nottingham

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