Couples should take legal advice before living together

You may have seen the press coverage highlighting Cohabitation Awareness Week.

Recent statistics confirm that the most common family type in the UK is the married or civil partner couple type and that the cohabiting couple is both the second largest as well as the fastest growing family type in the UK.

Importantly, it highlighted that unmarried couples are unaware that they are at financial risk should their relationship fail.

The poll indicated that some 37 per cent believed, quite wrongly, that they would get financial relief through court if they had lived together for longer than two years, due to a misconception of their ‘common law marriage’; a concept which does not exist in law.

Perhaps unsurprisingly, some 84 per cent agree that steps should be taken by the government to highlight to unmarried couples that they do not have the same legal protection as married couples, should they separate or one of them die.

On divorce the courts can share assets and income between the couple, according to factors such as need, contribution, and earning capacities.

However, for unmarried couples and in stark contrast, the courts do not have these powers. There is no power to award maintenance or lump sums, or to adjust shares in property based on legal concepts such as need. Therefore unmarried couples have to rely on the law relating to property in the same way as any joint owners of property where powers of the court are restricted to resolving disputes about shares in property and making orders to release the money by sale.

The situation is more complex for former cohabitees who have put money into a property owned by their former partner. These individuals must rely on the concept of ‘equity’ – that the courts will provide them with a remedy which is fair, regardless of the other party’s ‘legal’ ownership. However, this is also based on contributions in money and occasionally things such as physical labour.

Any such legal proceedings are likely to be slow, complex and expensive.

The Cohabitation Rights Bill which addresses the rights of cohabitating couples, is slowly meandering its way through the Parliamentary process.

Until there is a significant change in the law, it is vitally important for any unmarried couple, who are considering living together, to ensure that their financial and property arrangements are protected before taking the plunge, so that steps can be taken to make agreed provisions in the event that their cohabitation fails, for whatever reason. ‘Living Together Agreements’ can set out agreed arrangements should cohabitees decide to go their separate ways. Absent such agreement, the strain of resolving matters can be significant.

For further help or advice, please contact Chris Burns, Head of Family, at Lupton Fawcett on 0113 2802115 or [email protected]