The rates of cohabitation has been increasing, becoming the fastest growing family type in the UK with more than 3 million couples choosing to live together rather than enter a legal union either under marriage or a civil partnership.
Without the social stigma of cohabiting once brought, there have been many calls for more legal rights for cohabiting couples, something many still believe they have as being a ‘common-law’ partner.
Currently, the only rights available to cohabiting couples are related to jointly owned property or financial provision for any children under 18 where both parties are the parents.
There may be some claim over property by way of a constructive trust, if it can be proved that one party has contributed significant amounts towards the home, for example by making the mortgage payments or paying for improvements to the property or contributed to the purchase price. This will usually involve litigation however, possibly costing more than a final award.
It may also be possible for a financially weaker party to make a claim under the Provision for Family and Dependants Act 1975, but it would be up to the partner to prove they were financially dependent on the other during the relationship. This again would involve costly litigation.
In March 2019, Lord Marks of Henley-on-Thames, introduced the Cohabitation Rights Bill to the House of Lords. The Bill looked to protect cohabiting couples, of either the same sex or opposite sex, who have lived together for three years or more. There were also conditions with regard to rights that would affect any ‘relevant’ children of the relationship.
If passed, the Bill would give former cohabitants the right to apply to the court for a financial settlement order and ‘enable courts…to adjust the financial position of qualifying cohabitants on relationship breakdown, so as to spread the financial consequences, benefits and costs fairly between them’.
Cohabitants would however have the option of ‘opt-out agreements’; after receiving independent legal advice, couples could choose to opt out of any future financial settlements, by way of a signed agreement.
Cohabitants meeting the requirements would also be able to take out and have an interest in a life insurance policy on their partner. This would amend the Life Assurance Act 1774 which currently does not allow any persons with no interest to take out a policy on another.
The Bill also suggested amending the Administration of Estates Act 1925, allowing a cohabitee to receive a share of their partner’s estate under intestacy, as well as ensure that a surviving cohabitant could make a claim against the couple’s joint home.
Currently, if one partner dies intestate, the surviving partner is vulnerable to losing not only financial support their partner may have provided, but also the home in which they both lived. A surviving partner can only currently make a claim to maintenance through the Inheritance (Provision for Family and Dependants) Act 1975.
In 2006 cohabitants in Scotland were given more rights than those in England and Wales by the Family Law (Scotland) Act.
The rights are still less than those with a legal relationship but allow the courts to award capital from one cohabitee to the other when there has been ‘financial disadvantage to one of the parties.
A cohabitee can also make a claim on their partner’s estate on their death and is entitled to the same amount as a surviving spouse or civil partner would have had. The update in Scottish law aimed to reflect the trend of people increasingly choosing to live together, enabling them more protection.
Since the case of Burns v Burns in 1984 there have been calls for reform in England and Wales.
In 2007 the Law Commission made recommendations for legislative reform after it found that current law was ‘complex’ and enabled ‘unfair outcomes for cohabitants’. The Commission recommended a scheme of financial remedies for courts to make orders regarding property transfers, lump sum payments as well as pension sharing orders.
Lord Marks of Henley-on-Thames had made multiple attempts to introduce a bill, previous to that Lord Lester of Herne Hill had also attempted to introduce a private member’s bill, but all have fallen short.
The most recent 2019 Bill is currently awaiting its second reading in the Lords, having been shelved on the proroguing of Parliament in October.
England and Wales falls woefully behind other countries when affording rights to cohabiting couples. There seems to be some reluctance, reflected by the addition of the ‘opt out agreement’, possibly to save the sanctity of a legal union.
Speaking to The Law Gazette, barrister Andrzej Bojarski stated:
“Anything seen as potentially devaluing marriage or encouraging people not to marry because they have remedies elsewhere does seem to discourage parliament from doing anything about it.”
In two Supreme Court cases, it has been decided that the lack of laws regarding cohabitation are in breach of the European Convention on Human Rights; ruling that ‘unmarried couples should have the same right as married people and civil partners to claim for state benefits such as bereavement payment and widowed parent’s allowance.’
A case in Northern Ireland found that a woman was entitled to her late partner’s occupational pension despite not having been nominated to receive it.
Any new law can take years to implement, especially as any cohabitation rights would affect many areas of law. Although, hopefully, the views expressed by those in Parliament, such as Lord Marks, solicitors, barristers, organisations such as Resolution, and the decisions in the Supreme Court will begin to make more of an impact.
In the meantime, it is up to organisations, such as Resolution, and solicitors, to inform clients and the public that unless they are in a legal union, they could end up in a very dire predicament with no rights over a family home or their partner’s estate. Some protection can be found through cohabitation agreements which set out how each party is protected in the event of a separation.