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Lack of rights for cohabitees is failing 3.3m families, Says Resolution

This week we are fully supporting Resolution’s Cohabitation Awareness Raising Week. Resolution’s drive to generate greater awareness around cohabitation follows the recent release from the Office of National Statistics of its Families and Households in the UK 2017 report. The report reveals that there are now 3.3 million cohabiting families in the UK. With one in six couples currently cohabiting, this is the fastest growing family type of the study. The number of cohabiting couples has doubled over the last twenty years and is expected to rise to one in four over the next two decades.

Resolution has responded to the ONS figures by saying that the high growth in cohabiting couples is further evidence that the law needs to catch up with modern British society. If these couples separate, they currently have little or no legal protection – despite the myth of ‘common law marriage.’ Jo Edwards, former Chair of Resolution says: “Many people don’t realise .. that ‘common-law’ relationships aren’t recognised in this country”. Despite this, research in 2013 from relationships charity, One Plus One, shows that almost half (47%) of the British public believe that cohabiting couples have similar legal rights to married people. This misconception can lead to outcomes that many would consider to be unfair when cohabiting couples separate.

In fact, whilst it is possible for unmarried parents to make financial claims against one another on behalf of their children, these claims are often limited and there is very little legal protection for them as individuals should they separate. In practical terms, if the family home that is shared by a cohabiting couple is owned solely by one partner, the other may have no claim on the property and could simply be asked to leave. It doesn’t matter whether they have been living together for a few months or many years, there are no laws to dictate how cohabiting couples should divide their assets if they separate, leaving separating couples to navigate property law principles instead (which are often complex and expensive disputes). There is also no legal requirement for one cohabitee to support the other financially after separation (save for child maintenance provision if there are children of the relationship). This can have a significant impact on the financially weaker partner, often the parent who has sacrificed career and income to bring up the children.

Last year, Resolution released its Manifesto for Family Law, calling for the introduction of some rights for cohabiting couples when they separate, bringing the law up to date with modern society. The situation is different in Scotland as well as in Canada, Australia and New Zealand. There, unmarried cohabitants do have legal rights on separation. It is surely time for England and Wales to catch up and to move with the times.

Whilst there have been numerous consultations on changing the law over the years, there has been no progress in this area. In recent weeks, however, there has been a groundswell of support for much needed reform of the law. Senior members of the judiciary, including President of the Family Division, Sir James Munby, have called for law reform.

There are now significant calls for more equal treatment of all types of couples when they separate follow a landmark judgement in the Court of Appeal in the Southwell v Blackburn case, where the judge found that an unmarried partner was entitled to a pay out on the basis that she was led to believe by her partner that “she would have the sort of security that a wife would have” during the relationship. This follows a recent Resolution survey of MPs, which found that almost two thirds of British MPs believe the law needs to be changed to give protection to unmarried couples if they separate.

The Cohabitation Rights Bill, which addresses the rights of cohabiting couples, is in the early stages of being considered by Parliament. Unfortunately, cohabiting couples cannot anticipate a speedy resolution to this matter as the Government has said that it wants to wait until research into the Scottish scheme has been completed, which might not even begin until 2020, and there is always the risk that this process will also be held up by Brexit considerations.

At Cambridge Family Law Practice, we endorse the need to bring greater fairness to the law surrounding unmarried couples and we fully support Resolution’s campaign to make the law on cohabitation more widely understood. In the absence of a marriage or civil partnership and without a change to the law, then you may be at risk on separation if:

  • the home you live in is solely owned by your partner;
  • your partner’s income supports the household;
  • you don’t have your own capital resources to secure accommodation elsewhere on separation; or
  • you have debts in your name which were taken out for your partner or shared with your partner.

In such circumstances, we at CFLP recommend that cohabiting couples seriously consider a cohabitation agreement, which would aim to provide some legal protection in the event of relationship breakdown. This is an Agreement negotiated with your partner and sets out what will happen to the assets, income and other resources in the event of relationship breakdown. All cohabiting couples should also seek legal advice about drawing up a Will, to clarify their wishes, should one parent predecease the other.

If you have any questions about what you’ve read here or any family law issue, you can call us on 01223 443333 and make an appointment to speak to Simon, Adam, Tricia, Sue, or Gail.