Cohabiting couples or common law partners have now replaced the traditional married couple as the fastest growing relationship status in the UK. Cohabitees have increased by 25.8% over the last ten years*, as more and more couples decide not to walk down the aisle. But has the law kept pace with this change in society?
To coincide with ongoing awareness campaigning by Resolution, the national family justice body - Emma Roberts, Associate Solicitor in the family law team at Stephensons Solicitors LLP, busts a series of myths around the legal rights of cohabitating couples.
The law around cohabiting couples is shrouded in mystery. Currently there is no such thing as common law marriage in UK law, so this means that couples who are committed to living together do not have the same legal rights as married couples. The Cohabitation Rights Bill, which addresses the rights of cohabiting couples, is in the early stages of passing through Parliament.
The legal position for unmarried couples is widely misunderstood and a cohabitee has very limited legal rights and responsibilities towards each other after separation.
Emma Roberts breaks down six cohabiting myths and misunderstandings:
1) The “Common law husband and wife”
This is the most common misconception around cohabiting couples. The ‘common law husband or wife’ does not exist. Unmarried couples do not acquire the same or even similar rights as a married couple, regardless of the length of a relationship. Unmarried couples do not have the right to apply for shared income and assets and have limited property claims.
A cohabitee has no right to a partner’s pension on separation. Each cohabitee retains their entire fund when a couple splits, regardless of the pension value, or if the other person has a pension themselves and the length of their relationship.
A cohabitee has no automatic right to make a claim against the property of an ex-partner or request a greater share of a jointly owned property. If legal ownership does not reflect the reality of one cohabitee, the court will need to consider what the shared intentions of the parties are. Without any clear statement of intention, the court has the complex and often time-consuming task of considering conduct regarding the property to establish intention.
A cohabitee cannot apply for financial assistance from their ex-partner. The issue of money in general is very distinct. If you are living together and both cohabitees have separate bank accounts, neither has access to money held in each other’s account. If as a couple you have a joint account, both has access to the account, regardless of who pays into it.
5) Financial applications relating to children
A parent is able to apply to the Child Maintenance Service, known as CMS, for a child maintenance assessment. An individual can also apply to the court for a ‘top-up’ maintenance order, if the paying parent’s income is above the maximum of the CMS limit of £3,000 per week gross taxable income (£156,000 per annum.)
The level of top-up maintenance will depend largely on the standard of living and the lifestyle of the parents. It is also possible in certain circumstances for a parent to apply to court for a lump sum payment and property provision for the children of the relationship. Please be aware that this financial support will usually cease when the child reaches the age of 18 and any property provided will revert back to the parent who offered it. This could possibly leave one parent without a home or any financial support.
Former cohabitees do not have the automatic right to inherit from a partner’s estate on their death, even when they have children, unless the couple owned property jointly. As an unmarried couple, making a Will is a must if you want your partner to inherit your estate.
Please do bear in mind that if you inherit assets as a cohabitee, you will be subject to paying inheritance tax, unlike married couples.
Although cohabitees can’t sign up to a pre-nup, a sound alternative is a cohabitation agreement or living together agreement, which protects everyone’s possessions and outlines the rights each partner has. We would advise that you take the following protective measures:
- Seek out legal advice from a specialist family lawyer so you are aware of your rights and are able to take protective measures to secure your future
- Before buying property together, decide how you wish to own your home, for example work out what percentage you would own and explicitly detail this in a declaration of trust. If the property is being brought by just one cohabitee this needs to be recorded in an agreement
- Enter into a cohabitation agreement with your partner, this will legally record how you intend to share assets and provide financial support in the event of a relationship breakdown
- Make a will which sets out how each cohabitee will provide for each other
- Organise life insurance as a safety net to provide for your partner or family if the worst happens
Resolution’s awareness raising
Resolution, the national membership body representing family justice professionals, has been working for a number of years to both raise awareness of the lack of legal protection for cohabiting couples, and to persuade policymakers of the need for reform.
Matt Bryant, Director of Communications at Resolution, said:
“Cohabiting couples are the fastest growing family type in the country, and worryingly, many are living under the mistaken belief that the law offers them some form of protection should they separate. Resolution is keen to ensure that the ‘common-law spouse’ myth is put to bed.
“That’s why we’re spear-heading a long-running campaign to change the law. It’s also why we’re encouraging all our members to write to their local Parliamentary candidates in the run-up to the General Election on 12 December, to persuade them of the need for reform and many other areas of the law that affect separating families.”
Diana MacCarthy, 45 and Andy Dolan, 44 have been a cohabiting couple for 18 years in Manchester after falling in love while both working in the bar industry. Diana said:
“Andy and I have been in a relationship for 22 years, after meeting while making cocktails behind the bar. We dated for three years, before deciding to move in together and rented an apartment. During this time, we saved and saved with the aim of amassing a substantial deposit to put down on a home.
“We’re a practical couple and chose to make the leap and buy a house together, rather than paying thousands on a wedding. We wanted a place to call home, for life, rather than an expensive one-off celebration. We feel we’re both already committed, as we’ve been together 22 years, so don’t need to be married.
“We’re realistic and recognise our house is our core asset and something that will hopefully go up in value. As we’re both in our mid 40s we’re at an age where we thought it was sensible to start looking at our wills and the practicalities of leaving a legacy for our family and friends.
“The whole theme of retirement is also foremost of mind and the value of our pensions is important to us. As we look to our later lives, the importance of planning our care as a couple who age together is tied into our financial security.
“Being honest, we’re not really aware of legal rights as a cohabitating couple verses being a married couple, and I imagine most cohabitees are in the same position. I would label myself as a ‘common-law wife’ and think I have a ‘common law husband’ but I don’t know what rights are really attached to this ‘status’.
“As a couple we made a decision a long time ago to have the financial security of a home rather than buying a designer wedding dress. We’re no longer under societal pressure to get married, being a cohabitee is a sign of the times as more couples are rejecting the idea of an old-fashioned union in favour of financial practicality.”.