Cohabiting couple families are the fastest growing family type

On the breakdown of a relationship, cohabiting families are faced with the same issues as married couples. However, the law applicable to them is very different. There is no such thing as what is often referred to as a ‘common law spouse’ and the rights of cohabitees on the breakdown of their relationship are much more limited than those of spouses, which can result in great unfairness.

Under current cohabitation law, two people can live together for decades, even have children together, and then simply walk away from each other. Although some may find an appeal in this, in reality it can have a huge impact on women and children in particular. There is no equivalent for cohabitees to the protection awarded to the more financially vulnerable spouse on the breakdown of a marriage, especially in the absence of minor children. In certain circumstances (e.g. inability to work due to ill health), a spouse can claim ongoing financial support from the other following a divorce. There is no equivalent right for a cohabitee to do so.

It will be a matter for Parliament to address these issues in due course.

In the meantime, however, there are steps you can take as a cohabitee to protect your position as far as possible, both at the onset of a cohabiting relationship and on its breakdown.

You should consider a cohabitation agreement, which is akin to a contract between the two of you setting out the rules you want to apply to your cohabitation and its breakdown. Provided certain criteria are met, you will be able to rely on your agreement if a dispute arises as a result of the breakdown of your relationship.

In the absence of a cohabitation agreement, if you have minor children in your care you may be able to bring a claim on their behalf against your former partner which can indirectly protect your income and housing position until they are 18.

Always take legal advice before purchasing a property together and make sure that the extent of your financial contribution (to the deposit and/or mortgage repayments) is reflected in your ownership. Also remember to update your Will as your cohabiting partner will not be treated as your next of kin by the intestacy rules.

In the future a civil partnership may also be an option (as it already is in the Isle of Man). See our recent blog on this topic.