Cohabitation is on the rise in the UK with as many as one in six couples choosing to live together and avoiding walking down the aisle.
But when love wavers and relationships go awry, such arrangements can prove more difficult to unravel than ones where an exchange of rings is involved.
For those millions of unmarried couples in England and Wales who purchase houses and flats together the advice is to hammer out the details of who owns what and sign agreements before taking out mortgages together. Or at least that appears to be the view of the House of Lords. In a landmark ruling last month in the case of Barry Stack against Dehra Dowden, the law lords denied the appeal of Stack who claimed he deserved half, rather than a third, of the share of the north London property he bought jointly with Dowden, his former partner.
The union of the two former unmarried partners who separated in 2002, was longer and more fruitful than many marriages. It began in 1975, involved almost 20 years of cohabitation and produced four children. But the law lords decided Dowden had invested more in the partnership and deserved a bigger share of the property. If the pair had been married, solicitors say Stack would have had a better chance of retaining more assets.
In response, William Selby-Lowndes, a partner with Darbys Solicitors, says: “This ruling is a reminder that cohabitation is nothing like marriage legally.”
What are the legal differences when it comes to co-habitation and marriage?
Co-habitation in England and Wales is viewed by the courts as a commercial transaction. As a result, the courts have no discretion about how assets or stakes in a property are divided when relationships sour. Typically, judges examine the financial contribution each partner has made to the property.
“If it’s clear the female partner has put in two-thirds of an investment into property and the male partner a third, then the court would probably rule that two-thirds of the property belongs to her or at least that’s what happened last month in the case brought to the House of Lords,” says Margaret Hatwood, a solicitor with Thomas Eggar.
Custody of children makes matters murky in a co-habitation case. The partner primarily responsible for the children would be able to claim maintenance for the children and additional capital provisions.
In a divorce court, by contrast, judges can take a more holistic view and examine the needs of each partner. That is because the legal starting point for viewing these sorts of cases under the Matrimonial Causes Act is the equality of the two partners. This greatly improves your legal position, as the judge takes into account the length of the marital relationship, living standards, earnings and who contributed what to the welfare of the family.
Even if you are married and all the assets are in your husband’s name, you could still expect to get some share of them. “It’s now very much accepted that staying at home to bring up children is an equal contribution to going out and earning the money in a marriage,” says Selby-Lowndes.
Is there such a thing as common-law marriage in England and Wales?
No. Unmarried couples or couples who have not entered into a civil partnership have almost no legal rights if their relationship falters. They do not have a right to a share of the home they lived in together if that home is held in the other’s name and they do not have a right to claim financial support, according to the solicitors Linder Myers. They don’t even count as legal next-of-kin, these solicitors say.
The only place in the UK where laws are slightly more favourable is Scotland thanks to new regulations introduced as part of the 2006 Family Law Act. In Scotland, co-habitees maintain the right to apply for financial provisions after a relationship breaks down.
What are gay people’s rights?
If you are gay and co-habitating with your partner, you are in the same position as an unmarried heterosexual couple. But if you enter into a civil partnership with your partner, you have the same rights legally as a married couple.
Has any attempt been made to make the laws on co-habitation more favourable given the rise in the number of unmarried couples?
Last year the Law Commission, the law review body, suggested reforms that would greatly improve the rights of couples who cohabit but who never sign a formal contract of commitment. The idea that these reforms could be passed as a bill remains only a possibility. A draft report is expected to come this summer.
The reforms range from better inheritance rights and the granting of financial relief upon separation to offering more established support payments if a partner cares for children. However the proposals are not intended to be as generous as the rights awarded to married couples or civil partners.
If I am considering moving in with my partner, what should I do to protect myself?
Couples should get advice from a solicitor before even looking for a flat together. Written agreements which state who should have what and offer up an indication of partners’ intentions are necessary when relationships go belly-up.
