Article for Harrogate Advertiser

7 November 2008

By Tim Mellors, Partner, Family Law

While the Law Commission has recognised that cohabiting couples need more legal protection, it has stopped short of recommending similar rights to those provided by marriage. Head of Family Law and a partner at Harrogate solicitors Barber Titleys, Tim Mellors, explains what the changes would mean and why many cohabitees remain vulnerable.

As the law stands, cohabiting couples have very little legal protection compared to the rights available to married couples.

For example, upon the breakdown of a marriage, there is a presumption that both partners are equal in spite of their often different contributions. In the absence of special circumstances, all assets including property, investments and pensions are divided equally upon divorce.

The position is entirely different for cohabiting couples for whom there is no such presumption, irrespective of the length of their relationship.
Unlike married couples, there is no entitlement to maintenance for cohabiting partners. Financial support would, however, be available for the maintenance of any children of the relationship.

If someone lives with a partner for many years, they could still end up homeless and penniless when the relationship breaks down. If their partner dies without making a Will, the estate which they expected to inherit could be divided up between relatives of the deceased partner.

In an attempt to address these injustices, the Law Commission has made limited recommendations, the main benefit of which would be that cohabiting couples who separate would be entitled to a financial settlement which would reflect their contribution to the relationship.

The partner claiming would have to show that they had made a 'qualifying contribution'. They would have to prove that their partner had obtained a benefit, or that they had suffered an economic disadvantage, arising from their respective contributions.

For example, if a woman foregoes her job and stays at home to look after the children so that her partner can enhance his own career, then she would be at an economic disadvantage which would be reflected in the financial agreement.

Similarly, if a man helped to pay for a mortgage in his partner’s name, then she would have a clear advantage and he should be compensated for that.

Further powers available to a court would be to order one of the partners to pay a lump sum to the other, or to require their home to be sold. These measures would represent an improvement on the present position but would still fall a long way short of the situation of married couples who divorce.

The proposals are now being considered by the Ministry of Justice as to whether or not they should be implemented.

In the meantime, there are a number of steps cohabiting couples can take in order to regulate their relationship. They should consider:

Making a Will and taking financial planning advice.

Drawing up a Declaration of Trust in respect of any property they own.

Signing a cohabitation agreement/pre-marriage agreement/pre-civil partnership agreement. These are widely recognised in other countries as legally enforceable, but the position is not so clear-cut here. Increasingly, the existence of an agreement and the weight given to it are factors which judges will take into account when deciding issues within a subsequent divorce or separation.