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Cohabiting couples in 2022 – why you still need to protect your legal position?

Cohabiting couples in 2022 – why you still need to protect your legal position?

When it comes to the law, life is still an unfair struggle for cohabiting couples.

The long-awaited Cohabitation Rights Bill, which promises to finally bring the rights of 3.6 million unmarried couples into the 21st century, is still far from a reality.

This leaves many people, particularly those who are now thinking of separating from their partner, in a difficult, distressing and potentially vulnerable position.

In this situation, taking advice from a specialist cohabitation solicitor to safeguard your position is particularly important and does not need to be an expensive process.

What difficulties do cohabiting couples face?

Unfortunately, there are still many misunderstandings around the concept of cohabitation.

The biggest of these is that cohabitation is ‘common law marriage’ and that cohabitees have the same legal rights as married couples.

One in five people still believe they have a claim on their cohabitee’s property if they have lived together for more than five years.

This is not true. Common law marriage is a myth without legal protection.

What are the main legal differences between marriage and civil partnership and cohabitation?

Although campaigns to reform the current system and level the playing field are ongoing, huge disparities between the rights of married couples and those of cohabiting couples remain.

As the law stands, no matter how long you have been together, you won’t have the same rights as a married couple.

For example, as a cohabiting partner you have:

  • No right to come out of the relationship with what you consider a fair reflection of what you have put into it. For example, if you bought a property together but didn’t formally set out the shares of ownership and how the sale proceeds were to be divided if you separated, you may not get what you think is just;
  • No rights to a property you may have lived in for years if it was solely owned by your deceased partner;
  • No automatic right to inherit your partner’s property and estate – even if you have lived together for many years and have children together – if your partner dies without a valid Will in place;
  • No right to spousal maintenance or your partner’s pension;
  • No tax benefits to cohabiting, unlike marriage or civil partnership;
  • No automatic parental responsibility as a father if you are not named on the child’s birth certificate, unlike married fathers.

How does a Cohabitation Agreement protect me?

A properly drawn cohabitation agreement is an uncomplicated and legally enforceable way of making sure you both know where you stand.

It details who owns what and in what proportions, what financial arrangements you have decided to make while living together and how property, assets and income should be divided if you split up.

While it’s best to get one drawn up before you move in together, you can make a cohabitation agreement at any time.

It can be as detailed as you want, covering contents, personal belongings, savings, and how much each of you contributed to the mortgage deposit and subsequent repayments.

  • Click here to read what we’ve written recently on how long it takes to set up a Cohabitation Agreement and what it’s likely to cost.

What else can I do?

Other sensible steps include making and regularly reviewing your Wills as well as incorporating a declaration of trust into your Cohabitation Agreement.

This can set out the different types of ownership. For example, stating that one person is entitled to 40 per cent of the net proceeds of sale and the other is entitled to the remaining 60 per cent if the relationship ends.

  • You can read more about joint property issues by clicking here.

Get in touch

Partner Lucia Mills specialises in cohabitation issues between unmarried couples who own property together.

She is experienced in advising cohabiting couples on all areas of the law from how best to protect themselves legally and financially at the start of a relationship through to the importance of making a will and what to do if things go wrong and they part.

Her aim is to help cohabiting couples ensure from the outset that they are protected legally and if a problem occurs, to advise separating couples on how to reach a settlement. She will always avoid going to court if possible.

Lucia is named as a key lawyer by the independent Legal 500 guide for 2023 in which she is described as having ‘an excellent breadth of knowledge as regards disputes over beneficial interests in property due to her TOLATA specialism.’

Book a free half hour appointment with Lucia by clicking here.