Updated: Sep 17
Kristie Silsby I Family Lawyer at Willans I 04 June 2021
The Office of National Statistics reports that just over half (50.4%) of the population in England and Wales opt for marriage or civil partnerships, but cohabiting couples continue to make up the fastest-growing family type, especially amongst the younger age groups.
Many couples still mistakenly believe that certain legal rights will automatically apply after they have lived together for a period of time or had children together – a misconception called the ‘common law marriage’.
Unfortunately, there is no such thing as a common law marriage in England and Wales, and so separating cohabitees do not have the same financial rights or entitlements when their relationship breaks down as those who have made a legal commitment to each other.
For example, unless the family home is registered in joint names, the non-owning partner has no guaranteed right to a share of it. Likewise, a cohabiting partner has no claim over the other’s pension funds or income stream. This leads to particular problems – and unfair outcomes- in situations where a couple have gone on to have children and where one party has prioritised childcare responsibilities over personal career aspirations and future financial security.
The family law profession continues to campaign for living together couples to have better and more equal financial provision rights on the breakdown of their relationship, but as yet there is no prospect of imminent law reform on the horizon.
With the stamp duty holiday recently extended, more and more unmarried couples will be taking the opportunity to get onto the property ladder ahead of legal nuptials (even if a wedding ceremony was planned). So, what steps can they take to protect themselves?
Well, a well-drafted cohabitation agreement can help couples to avoid unnecessary acrimony, legal costs and the uncertainty of litigation after the cohabitation comes to an end by setting out their clear intentions as to how property should be managed through the relationship and shared out at the end. The discussions around such agreements highlight the problems encountered when intentions are not voiced clearly and remind both parties to have financial backup in place should their living together arrangement ever break down.
Another option, particularly for couples contributing different amounts to a joint purchase of property – or receiving gifts or loans from family – is for them to enter into a formal Declaration of Trust deed. This is a legally binding document which records the legal and beneficial ownership of the property in line with what each party contributed towards the purchase price, and any agreement as to how the sale proceeds are to be divided if and when the property is sold.
It is also particularly important for unmarried couples to make a will, because if one of them dies the surviving partner will not automatically inherit the other’s estate. Wills for cohabiting couples are essential to ensure that property and assets are dealt with in accordance with their specific wishes.
If you need help with a cohabitation agreement or any of the other issues discussed above, please do get in touch with us at Willans.
Family law solicitor at Willans LLP, a leading firm based in the heart of the Cotswolds.
T 01242 542908
A 28 Imperial Square, Cheltenham, Gloucestershire GL50 1RH.
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