The long-standing belief in common law husband and wife still continues. Unfortunately, for many couples it is only when they separate that they find out this is only a myth and that, no matter how long they have been living together or whether or not they have children, they do not have the same rights as a married person. Any claim against their partner’s assets is dealt with under Property Law. Unless they can prove a claim for a beneficial interest in property owned by the other, they will not receive any payment in respect of the family home or other property owned in the other’s sole name. Nor will they receive any maintenance other than child maintenance and will have no claims against the other’s pensions or rights of inheritance.
Couples who have children can claim child maintenance and may be able to seek housing provision or a lump sum to meet the needs of the children. This however, only lasts until the youngest child reaches 18 or leaves full-time secondary education. It does not provide long term security.
Calls for reform
There have been many calls for reform to cohabitation law to give more rights to cohabiting couples. The government has now launched a consultation on reforms that propose giving more protection to cohabiting couples if they separate and automatic rights of inheritance if their partner dies without a will. It will look at changes in the law to reflect the modern day family where more than half the children are born outside of marriage.
The proposals being considered will also look at whether pre and post-nuptial agreements should be legally binding to allow married couples to decide how they should divide their finances should they separate in the future without the court intervening.
The consultation is unlikely to recommend that cohabiting couples have the same rights as married couples and will probably define who qualifies for any new rights, such as how long a couple have lived together and whether they have children together. They will also consider then couples will have to opt-in or opt-out of the new laws.
What can I do now?
You can consider taking action now to say how you want to deal with your finances.
Having a cohabitation agreement or a pre or post-nuptial agreement will set out how you wish to deal with your finances during your relationship and if you separate.
Considering how you own property is important so that it reflects your wishes.
You should make or review you Will and consider other estate planning.
The law in relation to cohabitees is complicated and it is worthwhile getting specialist legal advice preferably before you begin living together so that you understand what your future rights and entitlements may be. For more information contact our family department.
By Alison Wilding