Cohabiting Couples Beware! - *STOP PRESS*
In law, there is no such thing as a "common law" spouse*STOP PRESS*
The below is an accurate reflection of the law as it stands now but cohabitees should be aware that there is currently going through Parliament the Cohabitation Bill which had its second reading in The House of Lords on the 13th March. It is due to go to the Committee stage at Parliament on the 30th April. The "Bill" establishes a framework for financial provision on separation or death for those who live together as a couple". The aim is to put in place a procedure to provide protection and a fair outcome for cohabitants on separation and also amends existing legislation to allow a surviving cohabitant to make claims on the death of the other. It also extends to cohabiting couples' rights and benefits in death which are currently only available to those who are married or in a civil partnership. The intention is that those who cohabit either in heterosexual or same sex relationship should be able to bring limited claims against one another on separation or the breakdown of a relationship.
There are criteria that will have to be satisfied before a claim could be made and the deciding principles are going to be slightly different from those on the breakdown of a marriage or a civil partnership and the intention is not to put people on the same footing as they would be in relation to the breakdown of a marriage or a civil partnership. However, it does widen the scope of claims which cohabitants can bring against each other to the extent that any claim should not exceed the applicant's reasonable needs. There are also strict limits on the length of time for which ongoing periodical payments can be required.
Certain conditions will need to be satisfied before a claim can be made including a minimum period of cohabitation and/or whether there are children from the relationship. Furthermore, there are provisions for opting out of the "scheme" should both parties choose to do this. It will however give both cohabitants who meet the criteria the right to bring claims which they are currently unable to do under the current regime such as a claim for provision by way of property, lump sums or periodical payments.
Furthermore those who are already in such arrangements need to be aware. If you have already entered into for example a Declaration of Trust regarding the ownership of a property giving each of you different rights in the property it would appear at the moment that the legislation will be retrospective and therefore any Declaration of Trust you have already entered into could be set aside if the Court thinks it is fair and you meet the criteria to bring a claim.
At the moment of course it is in the early planning stages but the law is very likely to change in the not too distant future along the lines set out above. Watch this space!
For further advice or discussion about these very important changes
Please contact Deborah Baker
According to DirectGov there are over 2 million heterosexual couples living together outside of marriage in England and Wales. An increasing number of couples are choosing not to formalise their relationship by marrying, many because of previous unhappy marital experiences and consequent painful divorces.
"I'm never getting married again" is a cry commonly heard from a newly divorced spouse, emotionally hurt by an acrimonious ending to a one-time happy relationship. Even couples who have not been in previous marriages are deciding, in increasing numbers, for whatever reason not to "tie the knot".
Unfortunately, not being in a state of marriage is no guarantee that a relationship will not break down in the future and if such a breakdown occurs, sorting out the aftermath is often a lot more difficult than it would have been had there been a formal marriage.
This is because there is a well developed legal structure which is useful when "unravelling" the family and financial consequences of a broken marriage (family courts, legislation, legal precedents, practice and tradition). The procedures resolving the issues of the breakdown in a less formalised relationship are less coherent and tend to follow the party who owns the assets.
Some people mistakenly believe that there is such a thing as a "common law spouse" akin to an actual spouse and therefore subject to the developed legal structure described above. Furthermore, according to Resolution (formerly the Solicitors Family Law Association) for six out of ten couples who live together, this belief leads to the conclusion that if they split up they will have the same protection and rights as married couples.
Both beliefs are wrong.
Therefore, if you are not married and own your home or other property jointly (or think you own it jointly) the breakdown of your relationship will invoke property laws, not divorce laws. Thus you might have difficulty in obtaining what you may believe is your fair share if, for example, the property in which you live is held in your partner's name, or in joint names but your respective interests are not properly documented.
Other "complications" may also follow including confusion as to any rights and responsibilities regarding children of the relationship. Therefore if you are determined not to marry you should at least consider seeking legal advice and drawing up a cohabitation agreement with your partner at any early stage so that you agree on some of the things which will happen should your relationship end before death do you part.
For further advice or discussion about these very important changes
Please contact Deborah Baker Go Back
