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What rights do cohabiting couples have when they separate?

Cohabiting couples have now become the UK’s fastest growing family type, currently numbering approximately 3.3 million. More and more couples are choosing, for whatever reason, to live together without getting married. This may well be an indication of the shifting attitudes and progression in society, but gives rise to a number of problems, with which legislation is struggling to keep up.

In this article we explore the law surrounding cohabitation and how public awareness of the rights of cohabiting couples is so important and a change in law is crucial.

Recent surveys have shown that over a third of cohabiting couples believed they enjoyed the same or similar rights to couples who are married or are in a civil partnership, or did not know what their rights would be should they separate, or one party were to die.

At Miles and Partners, we often see unmarried partners who are shocked to find how limited their recourse to recovering assets is under the current law. Michelle Uppal, head of family law at Miles and Partners, comments on how frequently she sees this misconception in the course of her work:

“The myth of the common law marriage simply does not exist in the jurisdiction of England and Wales, yet many cohabiting couples mistakenly believe they will be financially protected. We see so many cohabiting couples who are financially vulnerable following the breakdown of a relationship and only wish they had taken advice or entered into a cohabitation agreement before living together,” says Michelle.

Although various organisations have campaigned and pushed for a change in legislation to recognise the rising number of cohabiting families, it appears that we are still a long way off from any real or substantial reform. Therefore, it is imperative that cohabiting families, current and prospective, are fully aware of their limited rights under the current law and how best to protect themselves.

What happens to property on separation?

Unlike couples who are married or are in a civil partnership, separating cohabitees will have no claim to any property or assets in the other person’s sole name. Assets in one person’s sole name will be presumed to be owned by them alone, unless it can be proven otherwise. Any joint assets will usually be split 50/50, or according to any cohabitation agreement in place.

One person has no right to make any claims against the other for financial support for themselves, although can do so for any dependent children. This means that should one person hold the lion’s share of the family’s assets, the other person would not be able to pursue any claim to that wealth unless it is for the benefit of dependent children, and as a result is at a distinct disadvantage in comparison to married couples, who do enjoy this right.

If the couple owns the family home in joint names, it is likely that the proceeds will be split equally. However, if the property is in one person’s sole name, the other person does not have an automatic right to any percentage of the sale proceeds. It may be possible to request that a court recognises any contribution made towards the purchase price or subsequent mortgage payments, and award the other party a share, but there is no guarantee of this.

If the family home is rented, what happens on separation will depend on the tenancy. The person named on tenancy will enjoy the right to remain in the property, but the other will not. If the tenancy is in joint names, then both people have the right to remain. It may be necessary in both above situations to make a court application for an occupation order to either permit the unnamed person to remain, or exclude the other person from the property, particularly if there are young children.

What happens when one person in an unmarried couple dies?

When someone dies without a valid will, their estate will be distributed according to the intestacy rules. These rules do not make any provision for an unmarried surviving partner. The only instance in which provision might be possible is if they can show that they were financially dependent on the deceased at the time of their death, and if the court agrees, some form of provision might be made. But again, this is not guaranteed.

Pension rights for cohabitees

Other than the family home, for many couples, the second most valuable asset is a pension. Again, whereas married partners have the ability to make a claim against the other’s pensions, cohabiting couples are not automatically entitled to claim a share of their former partner’s pension unless they are a nominated beneficiary.

A recent case brought by Ms Denise Brewster against the providers of Northern Ireland’s local government pension scheme shows some movement towards change. The highest court in the UK said that Ms Brewster, as the long-term partner of someone who had died, was entitled to receive a survivor’s pension even though her partner had not nominated her to receive one. The pension scheme in question allowed for married partners to be automatically entitled to benefit from a survivor’s pension, but unmarried partners could only benefit if they had completed a form to opt into the scheme. The court concluded that this was discriminatory and could not be justified.

This is just one indication that the judiciary is embracing the changing nature of society and the rise of cohabiting couples, and recognises the need for change in the law. The current legislation remains leaves millions of people in the UK vulnerable and without appropriate protection under the law.

Protection for unmarried couples

To avoid the problems detailed above, the best thing cohabiting partners can do is to enter a cohabitation agreement and make a will. Cohabitees will be able to make any provision they see fit for their partners within their wills. A cohabitation agreement will govern the division of any assets and detail housing and other financial arrangements upon separation.

Cohabitees may perceive such an agreement as unromantic, but it is important for cohabitees to remember that they do not enjoy the same rights as married couples under the current law, and cohabitation agreements are simply a means of putting them on a more level playing field with their married counterparts.

For more advice on the implications of separating from an unmarried partner and help with a cohabitation agreement, please contact Michelle Uppal mu@milesandpartners.com or call on 020 7426 0400.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.