We live in an era where couples are, more often than not, cohabiting and providing one another with financial support as if they are married.  Whilst this may seem like a modern approach to long term relationships, the law lags behind in protecting people if their committed relationships break down. 

Here, we look at this example:

Couple 1 - Chris & Karina

Living together for 15 years
No intention of marriage - ‘cohabiting’
Children 
Joint savings accounts
Shared mortgage
One main earner + pension
One part-time worker + family contribution - looking after children

Couple 2 - Ajay & Sophie

Living together for 15 years
Married for 15 years
Children
Joint savings accounts
Shared mortgage
One main earner + pension
One part-time worker + family contribution - looking after children


What happens if both relationships break down?

  • Who is responsible for paying off the mortgage? 
  • Who gets to stay in the home? 
  • Will the savings be split equally, even when one invested more but the other contributed to the family and home? 
  • What happens to the pension?

The legal position

The law answers all these questions unfairly for one couple. 

The harsh reality is that the law does not protect cohabiting couples in the same way it does married couples:

  • Marriage

In a divorce court case, savings, maintenance, property and pensions would usually be divided equally between Ajay and Sophie. If they had limited earning capacity, maintenance might be required to maintain a reasonable living standard, if affordable.

  • Cohabiting

People wrongly assume that just because a couple has lived like a married couple, they are also entitled to an equal split during a divorce case.  Chris and Karina are one of the 3.3million cohabiting couples. They are left with no protection in achieving a fair split in any financial divorce settlement, beyond limited protection for minor children and possible enforcement of agreements. 

In Chris and Karina’s case only assets that legally belong to each of them would stay with them.  No consideration would be taken of any family contribution.

In the 2017 Com Res poll, Yvonne who had five children with a partner of 17yrs expressed her disappointment: “I had given up work to raise our children and fill the traditional role of mother and wife as many do but didn’t know that without being married or having a cohabitation agreement I was completely unprotected”.

Successive governments have repeatedly refused to endorse the reforms recommended by the Law Commission to give cohabiting couples similar rights to divorcing couples

Resolutions Cohabitation Awareness Week 2017 recently aimed to eliminate myths and misunderstandings and provide support for couples living together so that financial hardship can be avoided.

Top tips for protecting cohabiting couples:

  • Talk to a family lawyer and get to know your rights as a cohabitee
  • Create a ‘Cohabitation Agreement’ - it can set out terms that define what would happen to the assets that each of you in the relationship in the event it was to breakdown. This allows you both to make well informed decisions about child support, monthly payments and  control and organisation over bank accounts and property both of you have brought into the relationship. It is a signed legal document that can be enforced in court if your partner ever contested it. 
  • A ‘Declaration of Trust’ - set out how your home is owned and in what shares.
  • Make a Will - unfortunately, when an individual dies without a Will, the ‘intestacy’ rules apply, and do not legally consider a cohabiting partner as someone of a blood relation - no matter how long the relationship has lasted. Additionally, any claims against the estate by them are limited to maintenance provision. 

In hindsight, if Chris and Karina had made a Cohabitation Agreement and a Declaration of Trust they could have been in a clear position with their finances from the start with peace of mind and protection. 

For more information or if you have any questions as a cohabitee, please contact our specialist Family Law solicitor, Mike Spencer on 0115 9 100 200 or click here to send an email.

Posted on Mon, 19th March 2018

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Mike Spencer

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