Posted by Emma McMorrow, Senior Associate
Families have changed – why hasn’t the law?
To marry or not to marry that is the question? The number of cohabiting couples has doubled in the last 20 years and they are the fastest growing family type in the UK. This fact has been widely acknowledged in the legal industry and the media and is the driver behind the need for legislative reform.
So I have no common law rights?
Many cohabiting couples are surprised that they do not have the same legal rights as married couples or those within a civil partnership. Many people still think a ‘common law marriage’ exists. However, the law does not provide the same security and protection for the parties if the relationship were to come to an end, unlike those who are married.
To put it into perspective, cohabitees could be a young couple who have finally made the jump and have moved into their first home, but equally a cohabiting couple could have been together for 20 years, with children, a home and a mortgage. If you are a cohabiting couple, the sad truth is, you may be entitled to nothing.
If a breakdown of the relationship were to occur there is no legal framework or responsibility of the stronger party, in a financial sense, to make any provisions whatsoever to help their former partner. The opposite is true for married couples.
What can cohabitants do to protect themselves?
Well currently there are few, if any, rights but this could change in the near future. There is currently a bill being passed through Westminster that would give further rights to unmarried couples. However, the issue is low on the political agenda and progress has been slow.
There are several key issues for cohabiting couples. The first concerns what is often a couple’s most significant asset, the family home. Joint tenants, tenants in common, do you know the difference?
For those with no legal training, jargon like this can seem like a foreign language. Couples often assume if they buy a property together then they would own it according to whichever proportion was contributed. The notion that as joint tenants they are presumed to own the property equally is not widely known. It would be wise for couples to look into their legal options and perhaps buy as tenants in common with a clear declaration of trust that sets out each party’s appropriate interest. Holding property as tenants in common also solves a multitude of legal headaches, especially in times of death and grieving.
Perhaps the most important issue at stake are the children. This is always one of the most bitterly fought and emotive areas of family law when couples fall out. Both parties are expected to maintain their children until they finish education. Usually, the parent with the greatest caring responsibility receives the most money. The Child Maintenance Service will asses each family’s situation and enforce their decision.
Protect yourself – get a cohabitation agreement
So what can be done? It may look bleak for some couples but there are steps that can be taken to secure the future. The cohabitation agreement is in essence a contract between the couple. It can cover the ownership of property and other assets and financial provisions for the children of the couple. The agreement is becoming ever popular with couples looking to remove uncertainty and protect their future. Consulting family solicitors to draw up an agreement may sound like an effort, but you can rest assured that it will save you much stress, money and heartache down the line.
Our Family Law team supports and champions further rights for cohabitants. We encourage and promote greater legal rights for people in cohabiting relationships and endeavour to deliver sound, honest and practical advice as the law develops in this area.
For more information on arranging a cohabitation agreement or advice on your situation if your relationship has already broken down contact Emma McMorrow in our Family Law team
020 7842 1484 Email us
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