Despite the large numbers of people cohabiting, the legal status of cohabitees is often misconceived by the public. Fifty percent of people in a cohabiting relationship believe that they will have some sort of common-law status because of the fact that they have lived with their partner for a certain period of time. In fact there is no legal protection for cohabiting couples and someone living in a property belonging to their partner may have no right to remain or claim a financial interest in the property. The law simply does not recognise cohabitees as common law husbands or wives no matter how long they have lived together or the number of children they may have.

 

The lack of any legal protection for cohabitees can create a number of legal problems for those involved. Should the owner of the property die without leaving a will then their cohabitee may find themselves with no right to stay in the property under the intestacy rules and may also not benefit from any life insurance policy held by their partner. A person who splits from the legal owner of the property can find himself or herself homeless as they may have no right to remain in the property owned by their former partner. Even cohabitees who have contributed to the upkeep of the property in which they live but which they do not legally own can face protracted legal battles in order to have their right to benefit from their contribution to the property recognised. Despite a number of prominent cases in recent years, the law on dealing with how a property should be dealt with on the breakdown of a relationship remains far from clear. A further judgment, which was expected to introduce greater clarity, was made by the Supreme Court in the cased of Kernott and Jones in November of 2011 but has failed to deliver any absolute certainty.   On the separation of a cohabiting couple the division of the family home becomes subject to the strict rules of property and trust law, which have developed to take commercial relationships into account, rather than the family law which would be used for married couples and which can take a more sympathetic view of non-financial contributions to the relationship.

 

Many legal commentators view the lack of protection for cohabiting couples as an area which needs to be addressed urgently. The Law Society, the representative body for solicitors, proposed as long ago as 2002 that Parliament should change the law so that cohabiting couples could register their relationship and enjoy similar rights to married couples. It proposed that a cohabitee who had suffered economic disadvantage, for example by giving up work to care for children, should be allowed to seek compensation for that disadvantage and that cohabiting couples should also be able to apply for maintenance payments on separation. These recommendations were largely backed by a Law Commission report made in 2007. Many legal commentators and family law organisations such a Resolution welcomed these recommendations and, given the Law Commission’s report and the enactment of law giving rights to cohabitees by the Scottish parliament in 2006, expected that it would be just a matter of time before the law was changed in England and Wales.

 

However in early September 2011 the Government announced that no new law for cohabiting couples would be considered in this parliamentary term.

 

Given the lack of protection in the law for cohabiting couples it is advisable for them to take more steps than married couples to ensure that assets are divided fairly and to avoid expensive legal proceedings. Couples who are living in their own home have several different options as to how legal ownership of the property is registered and a formal, written cohabitation agreement can be drawn up. The cohabitation agreement can be drafted to cover issues such as what would happen to the family home and how financial matters would be settled in the event of separation. Such agreements can often avoid expensive lengthy court room battles.

For more infomation about this topic, please contact a member of the Family Law Team