Will you move in with me?

Buying a home, moving in together for the first time, and maybe even having a child – all exciting new milestones for many couples, whatever stage in life. Despite the joy this can bring, when there is no ring on a finger or wedding bells on the horizon couples may be unaware of what little protection they have should their relationship come to an end.

Some couples cohabit for years before marrying or may have no intention to marry at all, yet many still hold the mistaken belief that living together for a prolonged period of time means they have financial entitlements similar to those existing in a marriage (the myth of a common law marriage). Belief in this myth can cause problems, particularly for the financially weaker party, who may have made assumptions about the ownership of or their entitlements to assets throughout the relationship – potentially leaving themselves with nothing at all on relationship breakdown.

According to ONS data, it is estimated that there are 3.6 million cohabiting couple families and yet the 2019 edition of the British Social Attitudes Survey found that almost half of participants believed in the concept of a common law marriage. That means millions may believe they have legal entitlements that simply do not exist. It is therefore vital that people are aware of their legal entitlements (and importantly what they are not entitled to) and how to protect themselves should things go wrong. If the Government’s recent rejection of the main recommendations in the House of Commons Women and Equalities Committee report is anything to go by, the law will not be there to catch cohabitees when they fall (or not anytime soon at least).

What are your rights?

Whilst the exact content of the laws relating to divorce and finances may be a mystery for many outside the legal industry, the fact that there are legal protections for married couples is known to most. Less well-known is the fact that cohabiting couples do not have legal rights akin to those that exist within a marriage, nor do they acquire legal protection merely by living together, no matter how long they have been cohabiting for.

The law as it currently stands can lead to results which might seem unfair or unexpected at the very least. The law very much favours the legal owner of the property, even if the other partner pays the bills, contributes to the mortgage or helps to redecorate or even fully renovates the property. Huge complications can follow in this scenario, even if there was an understanding between the parties that the property was jointly owned. Although it is possible to make a claim of ownership over property in the name of another, the non-owning individual has significant hurdles to jump to succeed. It is easier of course if there is a paper trail – but more often than not, understandings between couples are verbal and difficult to pin down.

On the flip side, there are also risks for those individuals who do not want their partner to have an interest in their property. Their property could be the result of years of their hard work, and they might quite reasonably view it as belonging to them alone. However the legal position is far from straightforward. Fleeting comments such as “it’s our property” or “I’m buying the house for both of us” might, if proven, amount to a common intention for the property to be shared, yet in reality the legal owner may never have intended for their remarks to carry such weight.

Additional difficulties and potential unfairness can arise where children are involved. When together, cohabitees may contribute equally (financially or otherwise) to the upbringing of the child, yet on separation, one party may take on more of the childcare and/or financial responsibilities. Whilst it is possible for one party to make a financial claim via Schedule 1 of the Children Act 1989 for the benefit of the child, this often falls short of the type of outcome a spouse would receive as a result of a financial claim on divorce; focusing as it does on the needs of the child, rather than the parent who might have given up their career to be the main carer.

As you’ll appreciate from this article, in practice the question is complicated, can be messy and a lot of the time quite unclear, all of which of course leads to unfairness.

Hope for the best: legal reform

The House of Commons Women and Equalities Committee recently published a report which re-ignited the discussion about cohabitation. The committee considered a scheme which would provide cohabiting couples with additional financial help on separation based on their respective contributions to the relationship. Unfortunately, the Government rejected the majority of the committee’s recommendations in its response –  so help is not round the corner, and the position looks to stay the same for now.

What we learn from this is that cohabiting couples need to take matters into their own hands. Whilst the current law may be out of touch with modern day relationships, this shouldn’t deter couples from protecting themselves as far as is possible within the existing legal framework.

Prepare for the worst: protection for cohabiting couples

There are a number of ways cohabiting couples can protect themselves should their relationship come to an end. When purchasing property, couples might benefit from having a written agreement setting out how the property is to be held (a cohabitation agreement). This agreement can deal not just with property, but finances, pensions, child maintenance and even childcare. These agreements can be put in place even after a couple have started living together.

Preparing for the worst when the worst is yet to happen can avoid the animosity that can arise if the relationship comes to an end. Negative feelings towards one another can cloud the ability to negotiate, but an agreement discussed and achieved at a time where a couple are looking forward to a future together is a much easier road to navigate.

Although everyone hopes their relationship will last forever, it is wise to prepare for the possibility that the worst could happen. Protect yourself now and you may thank yourself later.

If you are cohabiting with your partner and have any questions about your entitlements or would like advice on the protections you can put in place, please do get in touch with Jane McDonagh or Emma Reynolds in the SMB family law team.