Gemma Whitchurch, Senior Associate in our Family team recently met with Dave Robertson, Lichfield Labour MP to discuss the pressing issue of the need for changes in cohabitation laws within England and Wales. In this article, Gemma explains why there is a need for reform and what the issues are.
According to the Office of National Statistics the percentage of married people has fallen below 50% for the first time with many couples now choosing to live together without the formality of marriage. Despite this trend, cohabiting couples currently lack the comprehensive legal protection afforded by married couples in the unfortunate event of relationship breakdown.
But we’ve been living together for over two years – we’re common law husband and wife
The term “common law husband and wife” is a common misconception. Contrary to popular belief, cohabiting partners do not automatically gain the same rights as married couples, regardless of how long they have lived together or whether they have children together.
This can lead to significant legal vulnerabilities in the event of a relationship breakdown with the financially stronger party being able to walk away without any financial responsibility for the other.
Property
The property rights of cohabiting couples are governed by outdated principles of trust and property laws which were not created for regulating a couple’s financial affairs.
Subject to how they own the property and how they have regulated their financial affairs throughout their relationship, they may or may not have a right to share in the property if the relationship breaks down.
Parental responsibility
An unmarried father does not automatically acquire parental responsibility for the child upon their birth unless he is registered on the child’s birth certificate. If he does not jointly register the birth with the mother, then he can acquire it via a Parental Responsibility Agreement with the mother or obtaining an order from the Court.
Unmarried parents, whilst they do not have a financial obligation towards each other after the relationship breaks down, do have a legal obligation to financially support their children. Applications can be made to the Child Maintenance Service or for financial provision under Schedule 1 of the Children Act 1989.
Pensions
During divorce proceedings, pensions are a vital part of the marital assets, not to be ignored, and can be offset or subject to pension sharing or pension attachment orders.
There is no such provision for the sharing of pensions between cohabiting couples. Again, this can lead to a significant disparity of income in retirement, particularly for the individual who may have scarified their career to raise their children and/or to support their partner in achieving their success. Often that individual will have little to no pension provision and may be solely reliant on their state pension in retirement.
Inheritance
If one partner dies without a Will, the surviving person from the couple will not automatically inherit any of the deceased’s assets. Instead, the estate is typically distributed to the deceased’s closest relatives which can often leave the surviving partner in a difficult financial situation.
How to currently avoid complications
Whilst there is no current proposed legal framework for cohabitation reforms, many legal experts and advocacy groups are pushing for change to ensure cohabiting couples have access to rights similar to those of married couples with an option to ‘opt out’.
Currently cohabitating couples can take some measures to protect their property interests. Couples should consider entering into a Cohabitation Agreement regulating their property ownership and how they intend to conduct their financial affairs. Such agreements should be reviewed in the event of a change in circumstances such as a house move or investment into the property. Additionally, making a Will is important to ensure that a partner is included in inheritance plans.
If you are unsure as to your rights, then it is vital to seek legal advice and not rely on the common misconception of a common law marriage.
Get in touch
We have offices situated in Birmingham City Centre, Sheldon and Shirley. We act for clients not only from the West Midlands but also nationwide and internationally.
Our team is jointly led by partners Karen Moores and Mauro Vinti who along with the team are recognised in the Legal 500 directory. The team is described as “friendly yet utterly professional”.
Whether you require our services yourself or you wish to refer a friend, colleague or client you can feel confident that our family team can provide legal advice to the highest possible standard.
For pragmatic, no-nonsense advice and practical solutions on how our team can help you with your family or divorce matter, please get in touch on 0121 746 3360 or submit an online enquiry and we will get back to you shortly.
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