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Cohabiting couples – the legal rights of the fastest growing family type

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Hannah Gumbrill-Ward *Photo supplied

At the end of last month, the Women and Equalities Committee (UK) launched an inquiry into the rights of cohabiting couples. Although there is a widely held myth that couples who live together for long enough have a ‘common law’ marriage, the reality is that the law does not recognise cohabiting couples in the same way as it does their married counterparts. This is despite the fact that cohabiting couples are the fastest growing type of family in England, with one in every five families cohabiting.

Why does it matter if you are married or not?

If a couple is married there are legal protections in place to ensure that both parties are provided for as far as is possible if they divorce. However, if a couple live or buy together without getting married, it is property law that will apply upon their separation to govern who gets what. Property law is much stricter than divorce law, which can lead to unfair outcomes for unmarried couples when separating.

What will happen to your property if you are not married?

If a cohabiting couple separate, who retains the property that they live in will be governed by what is recorded on the title deeds and in any accompanying declaration of trust. The property may be held in a sole name or in joint names, in which case it will either be owned as joint tenants or tenants in common.

If a couple who owned a property as joint tenants were selling it, any proceeds of sale would be split equally between them. If they owned the property as tenants in common, the sale proceeds would be divided according to their respective shares. If the property was in one person’s sole name, then unless the other party can establish that they have beneficial interest in it, the named owner would be entitled to 100% of the sale proceeds, with the other person walking away with nothing.

It is important to note that property law will generally not take into account the contributions made by the parties during their relationship – financial or otherwise. Most importantly, their income and whether the amount they receive from the sale or transfer of the property (if any) will leave them with enough money to re-house is not considered at all. This could have a big impact on the financially weaker party to a cohabiting relationship.

What if they were married?

The starting point for the division of property on divorce is 50:50, but this may be departed from in order to meet the needs of one of the parties. This is most common where a couple has children, in which case their property will be divided in a way that ensures that the children’s needs are met first and foremost. That means that if one spouse needed more in order to buy a property for them to live in with the children, they can argue that they should have a greater share of the property.

The point is not that marriage is a better option than cohabiting, rather that if you are cohabiting you need to be aware that you will not have the same protection as your married counterparts. The Committee is seeking to investigate what legal protection for cohabitants could look like, how it might be introduced, and whether cohabiting partners should have the same rights as those who are married. Given that the numerous lockdowns over the past year have not only resulted in cancelled weddings, but also in some people deciding to move in together sooner than they may have originally planned, it is arguable that the number of cohabiting couples has only increased. This makes the Committee’s work all the more important for our modern society.

Hannah Gumbrill-Ward is a solicitor at Winckworth Sherwood.

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