The number of couples living together unmarried has soared in recent years, with the number of people getting married slowly on the decline. As of November 2017, there were 3.3 million cohabiting couples in the UK, which is more than double the number that there was only 20 years ago. This could be explained by more couples choosing to live together rather than marry, as well as by couples choosing to cohabit before marriage, particularly at younger ages.
As the dynamic of how couples progress their relationship is starting to change, it would make sense that the law evolves concurrently. But has it? The reality is, that it has not. There have been multiple bills presented to parliament over the years, none of which have so far been enacted. Due to this, it is imperative that some of the common myths in relation to living together are dispelled.
Common Law Marriage does not exist
- After living together for more than two years, unmarried couples have similar rights to married couples if they break up.
This is incorrect. Unmarried couples do not have the same or similar rights upon relationship breakdown or the death of one party, as married couples do. Married couples have automatic financial claims, whereas cohabiting couples do not. A recent poll of 2,000 British adults showed that 27% of them believed this myth to be true.
- It is true that unmarried couples who have lived together for more than two years benefit from what is known as a ‘common law marriage’.
This is also incorrect. There is no such thing as a “common law marriage” irrelevant of how long an unmarried couple have cohabited for. The recent poll showed that 37% of participants believed this myth to be true.
So, what is the current law on cohabitation?
In short, the law is out of date. It takes no account of changing family structures and fails to provide any real protection for couples who live together regardless of the length of their relationship or whether they have children together. This causes particular hardship for cohabitants who have made career or financial sacrifices for the sake of their relationship.
Below are some key examples of where cohabitants are disadvantaged upon the death of a cohabitant or relationship breakdown:
- There are no automatic rights to make a financial claim upon relationship breakdown;
- There is no inheritance tax exemption for any transfer of assets, payments of maintenance etc;
- A cohabitant has no entitlement under the intestacy rules to any property of the deceased;
- There is an absolute requirement on nomination in order for a cohabitant to obtain a survivor’s pension; and
- Cohabitants are not entitled to the statutory bereavement damages paid to a deceased spouse or civil partner in the same circumstances.
Advice for unmarried couples
Having dispelled some of these myths, the answer isn’t necessarily to go out and quickly get married to ensure protection to both you and your partner. It may however be sensible to enter into a Cohabitation Agreement or Cohabitation Contract as it is also known. This Contract can set out any agreements and obligations which can be relied upon during the cohabitation; and also in the event that the relationship should break down or if one of the parties should die.
Cohabiting parties should also consider entering into a deed of trust in relation to any joint property. A deed of trust may be entered into where one party is the sole legal owner and the other partner has an equitable interest or (more usually) where the parties are joint legal owners in equal or unequal shares.
The future of the law on cohabitation
There have been a number of bills presented to the government to address these problems, however as yet nothing has been enacted.
It is becoming increasingly apparent that the laws in this area are not moving with the times. Cohabiting couples are the fastest growing type of family in the UK, yet they are the most unprotected by the law. Millions of cohabiting couples are unaware that they don’t have automatic claims if they split up, and this makes it less likely they’ll take steps to protect themselves.
The public, legal professionals and a growing number of politicians all agree that we need reform to provide basic rights to cohabiting couples should they separate, so we all hold out hope that soon this might happen. Our society has changed and it is time for our laws to catch up.
It is particularly important for expatriates to be aware of the local laws that will apply to them when living abroad. In many parts of the Middle East, for example Dubai or Abu Dhabi, living together is against the law. Unmarried couples may not encounter difficulties until unforeseen circumstances arise, for example pregnancy or separation. It is then that couples can expectantly encounter criminal sanctions, and potentially an inability to make any financial claims against their partner following separation. Advice prior to a move abroad is sensible, to ensure safeguards and protective measures are put in place.
If you are a cohabitant and you are interested in finding out more about Cohabitation Agreements, then please do contact us on [email protected]
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