The law is notorious for lagging behind modern-day developments, and this is perhaps most obvious in the field of family law, particularly for unmarried couples.
The fastest-growing family type in the UK, couples are increasingly choosing not to get married and instead live together, often believing that this gives them the same legal rights. In fact, a recent poll by Stowe Family Law revealed that 51 per cent of Brits believe that cohabiting couples have the same legal rights as married. However, this is not the case. In reality, cohabiting couples share very few of the legal protections enjoyed by their married counterparts.
This popular misconception was largely born out of the popularity of the term “common law marriage”, used to describe couples who live together. But “common law marriage” is a myth that needs busting to set the record straight. Many of the UK’s 3.4 million cohabiting couples live on this false premise, believing that they are financially protected in the event of a break-up. Especially convinced of this are those couples who have lived together for a significant time.
MPs from the Women and Equalities Committee have called for the law to be changed to provide financial protection for cohabiting couples, emphasising the importance of legislation being aligned with this rising trend in family types.
In many cases, women are the financially weaker party in the relationship, meaning they can be left without any financial protection in the event of a break-up.
However, there are no plans for the law to change, so cohabiting couples are advised to find alternative ways of protecting themselves. And there are options available.
A relatively simple way to safeguard against financial uncertainty should a cohabiting couple split up exists in the form of a cohabitation agreement. This written document, which can be created at any time, covers the property and assets of both parties in the relationship. The document can detail who owns the assets/property, how these should be divided up upon separation, and the financial agreements while the couple lives together. Other points that a cohabitation agreement can cover include financial provisions, child arrangements and ownership of possessions.
Although a cohabitation agreement is not a legally binding document, it does hold weight in a court should a dispute arise, provided it was drawn up by a solicitor and both parties had independent legal advice. It is likely that the agreement will be persuasive to iron out any issues in the event of a dispute if the argument relates to property or any assets. This is because existing legislation protects the parties’ intentions where property is concerned, while other matters – such as spousal maintenance and pension sharing – are not currently protected for cohabiting couples.
When it comes to cohabitation agreements, there is a lot of emphasis on the parties’ intentions (which should be regularly revisited throughout a relationship as both parties’ circumstances will inevitably change). This is particularly true in cases where the legal ownership of a property does not reflect what the parties say was intended between them. If a cohabiting couple breaks up and there is property involved, this would be governed by the law of property and the law of trusts. If a couple is not married, the prospects of seeking a share of the property is low if it is just in one person’s name on the title deed.
Similar issues can arise in the event of the financially wealthier of the two passing away. The financially less well-off party can find themselves without even the right to enter the property they used to live in, much less have any claim to the deceased’s possessions, pensions or anything else. Cases of this nature, where there is no Will in place, will follow the rules of intestacy, where there is no right to inherit if unmarried.
Given the number of cohabitating couples in the UK has increased by 137 per cent since 1996 and is set to keep rising, we can only expect that the number of disputes following separation will increase accordingly, unless cohabitation agreements become more commonplace.
With Stowe’s research revealing only 9 per cent of cohabiting couples have a cohabitation agreement, the remaining 91 per cent would do well to consider the benefits of having one drawn up. While many think they do not need such a document because of the erroneous belief that living with their other half offers them legal protection, this has no merit.
It is no surprise that the law is struggling to play catch up to reflect modern-day family choices. While we are seeing progress – such as no-fault divorce becoming law on 6 April 2022 – other areas need addressing too. However, with no provisions in place for cohabiting couples, nor any concrete plans for the law to change to protect them, alternative solutions should be considered.
Claire Chisnall is a Solicitor at Stowe Family Law.