June 27, 2014

Married parents in decline – the law doesn’t keep up with cohabitees

An unmarried couple, without children, doesn't have the protection of the Court's discretion to make orders that would be seen as appropriate and fair. Unmarried couples also have to rely on the laws relating to property and ownership that mean they can only claim for property and possessions which they own.

This can be seen to be unfair. For example, upon separation, a cohabitee with grown-up children, who has lived with another person for 20 years, would not be entitled to share in the family home if it is not specifically in their name, they have not contributed to the house and can’t show that there is an agreement between the parties for them to benefit from the house. This applies even if the reason for the lack of a contribution to the house is due to commitments to the children. This is an entirely different picture to separated married couples where the legislation allows the court to transfer assets to achieve fairness regardless of contributions.

Giving cohabitees similar rights to married couples will require an act of Parliament. There is some reluctance to change the law in this area with many arguing that if cohabitees want to have the same rights afforded to married couples they should get married.

I suspect the law will change, but in the meantime, greater steps should be taken to educate cohabitees that they have next to no legal rights at all; a fact that comes as a shock to many cohabitees when they instruct our Family team to act on their behalf.

The other big problem is that the law that surrounds the ownership of property by cohabitees is hugely complex and even some solicitors struggle with it. At the very least steps should be taken to simplify the law even if the Government decide not to change it!

I would suggest you take advice before cohabiting or acquiring property. It can save a great deal of money and heartache in the long term.

For more information on your rights on separation or for information on cohabitation agreements, contact our Family team on 0800 923 2074 or email [email protected].

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