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Is the law going to change to protect cohabiting couples?

It’s a fact of modern day life that more and more couples are living together before marriage with many choosing never to marry at all.

Data from the Office for National Statistics once again illustrates this – the number of couples who are unmarried and bringing up children has grown by 132% since 1996 to almost 1.3 million.

Nearly one in five families now cohabits, and this trend is expected to continue across Europe with more than half of all 20-year-olds in the UK unlikely ever to tie the knot, according to the Marriage Foundation.

Legal status

This means that a growing number of people are intertwining their finances without any legal protection, should the relationship come to an end.

Sadly, there is still a huge misconception that long term living together offers similar rights to being married. “Common law marriage” is actually a complete myth – cohabitees are treated pretty much like total strangers in the law.

Calls for change

Due to this dramatic rise in the number of cohabiting couples, it has been proposed that laws should be put in place by Parliament to ensure that they do have some legal protection.

The Cohabitation Rights Bill aims to provide basic protection for cohabitants and is still in the very early stages of consideration. It had its second reading in the House of Lords last December and is now at the Committee Stage, although this line by line examination of the bill has yet to be scheduled.

Draft proposals

The Bill proposes allowing cohabitants with children, or those without children who have cohabited for two years or more, the right to apply for a financial settlement order once a relationship comes to an end.

It will not, however, afford the same level of protection available to married couples.

Essentially, the key change would enable one of the cohabitants to make an application to the court for a financial order. Such an order could include transferring a property into one of the cohabitant’s names, a payment of a lump sum by one party to the other or pension sharing.

In order for the court to make an order, the applicant would need to demonstrate that the other party received some sort of financial advantage from the relationship and that they suffered a financial disadvantage as a result of the relationship.

Day to day implications

It’s impossible to say precisely how the Bill would function if it were to become law but I imagine it would be applicable in the sort of circumstances we see regularly.

One example of this is where one party has given up work to stay at home and look after the children and the other party has continued to work, has the family property in their sole name and makes the mortgage payments.

Controversy 

The Bill, if passed, will be welcome news for those long-term cohabitees, those with children, those who believe in common-law marriage and those who simply haven’t got round to tying the knot. But what about willing cohabitees who have actively decided not to get married?

Some people are very against the idea of automatic rights for cohabitants protesting that those who want this can enter in to a marriage or civil partnership.

Others argue they have chosen not to marry because they do not want the rights and responsibilities that come with being a spouse, that they deliberately want to avoid the paperwork and the general fuss of divorce should they decide to separate.

One way in which the Bill seeks to deal with these concerns is in allowing couples to ‘opt-out’ of the rights created by the Bill. In order to ‘opt-out’ you would need to enter into a written agreement, signed by both parties, after receiving independent legal advice on the rights being potentially given up. The agreement must also be certified by the parties’ legal advisers.

Couples who wish to ‘opt-out’ of the potential rights do not need to wait for the Bill to be made law and can do so now in the form of a Cohabitation Agreement.

What you can do now to protect your rights

Even if you do not want to ‘opt-out’ of the Bill it is still sensible to consider putting a Cohabitation Agreement in place.

Although there is a still a big question mark over whether the Cohabitation Rights Bill, or another like it, will become law, it is important to make sure that your rights are protected as much as possible.

Failure to do so means – rather frighteningly – that you only have the same amount of rights over each other’s property as room-mates do.

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