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Cohabitation – the UK’s fastest growing family type

The fastest growing family type in the UK is the cohabiting couple, of which there are currently 3.3 million in the UK. That’s one family in every five. This week is Cohabitation Awareness week. Resolution, a group of family lawyers committed to finding a better way for couples experiencing divorce and separation, are campaigning to raise awareness about the rights – or lack of rights – that cohabitees have. They are also campaigning to change the law to offer greater financial protection on separation for cohabiting couples. Lodders’ Family law expert Amy Parker explains.

47% of the British public still believe in the myth of the common law marriage – the idea that you acquire legal rights akin to marriage after a long cohabiting relationship. The reality is that cohabitees have no legal rights by virtue of the relationship.

That may be fair for couples who have chosen not to marry because they do not want the legal consequences of marriage and are financially savvy or independent, however, many couples do not realise that they do not have such rights and subsequently make decisions during the relationship in expectation of an entitlement they do not have.

The Court’s role

Unlike married couples who separate, cohabitees are not able to apply to the court for financial remedies when they separate. Instead, they are reliant upon trust and land law to establish a claim in any property that is not in their name, including the family home. The court does not have the same discretion as they do upon divorce; the decisions are not based on what is fair and the proceedings can often be complex, costly and lengthy.

Whilst there is a statutory child maintenance scheme, it is formulaic and the support that the non-resident parent is required to provide is limited. Under Schedule 1 of the Children Act 1989 the resident parent can apply for provision for housing and lump sums for ‘kitting out’ education costs or other capital needs of their children, but, as it is linked to the children, the provision will end on the child’s majority in most cases.

The plight of unmarried parents is highlighted by Siobhan McLaughlin whose test case decision that she was entitled to receive the ‘widowed parent’s allowance’ was overturned by the Court of Appeal last year. Ms McLaughlin had lived with her partner for 23 years. Following her partner’s death in 2014 she became the sole provider for their four children but was not entitled to the same benefit married parents receive upon a spouse’s death, as they had never married. Ms McLaughlin has appealed to the Supreme Court.

Planning for the future – our advice

People do not like to think about or plan for their separation or death, but for unmarried couples it is vital that you take action to ensure you are protected in the event of separation by;

  1. Entering into a cohabitation agreement to set out how you intend to organise your finances during the relationship and what should happen to the property on separation.
  2. Ensuring that if you are purchasing a property jointly that both names are registered on the title deed and if you intend to hold the property in unequal shares, you enter into a declaration of trust to record this.
  3. Creating a will and/or taking out life insurance to ensure your partner is provided for in the event of your death. Your partner will not inherit a share of your estate unless they are specifically named in your will.

At Lodders, our expert family law solicitors can assist with the preparation of cohabitation agreements, and we can also help in the event that no such agreement has ever been reached. For more information please contact Amy Parker on 0121 200 0890 or drop her an email.

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Get in touch

For more information please contact Amy Parker on 0121 200 0890 or drop her an email.