We’re happy cohabiting, why bother getting married?
Like millions of others our Prime Minister, Boris Johnson, and his partner, Carrie Symonds, have chosen to live together rather than get married. In fact, I read that around 3.4 million people in the UK now live together as cohabitees rather than getting married. It makes me wonder however, how many of them realise the potential pitfalls they face, should the relationship fail.
Cohabitees are just as likely to have children, own property, share household bills and incur joint debts as married couples or couples in a civil partnership. Yet a cohabiting couple has very different legal rights.
Cohabitees lack legal rights
Cohabitees have no rights inherent in the fact that they live together. The persistent myth that once you have lived together for a few years, you gain rights regarding financial matters is simply not accurate.
For a cohabitee there’s no right of occupation in a family home that you do not own simply because you are a couple or rights to claim financial support from your partner because you gave up your job to look after the kids and the home or various other advantages that may be available to you simply because you got married.
Property disputes between cohabitees are resolved using property and trusts law and not ‘family’ law. Cohabitees have access to only a ‘patchwork’ of remedies within which the law is complex, uncertain and expensive to litigate. It is not designed for families.
Legal principles used to resolve cohabitee disputes
Just like married couples who are divorcing, when cohabitees separate, they need to decide what to do with the family home, how to pay the bills, mortgage and make sure that the children are properly provided for financially. Sometimes one party to the relationship owns the home and the other does not. Sometimes both parties own the property jointly, but one wants a sale and the other wishes to stay put. What about the house contents, family cars, savings accounts, debts and so on? What rights in family property do cohabitees have? The law will not assume a 50/50 division as its starting point and then consider what is needed and what is fair as it would for divorcing married couples. It only looks at the facts and legal principles – whose name is on the title deeds, have any beneficial interests accrued through promises, common intentions, contributions, detrimental acts, and other complex legal doctrine requiring detailed evidence to substantiate.
Legal change needed to protect cohabitees
Since the primary chunk of family law, the Matrimonial Causes Act, was introduced in 1971, the legal framework for the division of family capital, property, income and debt has arguably not kept pace with societal changes. Some 50 years on from this Act being created, the options available to divorcing couples to ensure that family finances are shared based on “needs and fairness” remain closed-off to couples who cohabit. I regularly take calls from clients who are separating from their partners after decades of cohabitation, who will exit their relationship with far fewer financial resources than their divorcing counterparts who have been together for relatively short periods in comparison.
Options for cohabitees to protect their financial position
One option that the vast majority of cohabitees are unaware of is that a considerable amount of this uncertainty and expense can be avoided if legal advice is sought from a family lawyer in advance, at the stage when you were purchasing your family home and/or when opting to cohabit.
Property deeds can be drafted more thoughtfully to reflect your wishes and a Cohabitation Agreement (sometimes called a Cohabitee Contract/Deed) setting out a legally binding framework to be used upon the break-up of your relationship could be prepared and signed by you both. A Cohabitation Agreement can help regulate the division of assets in ways in which the current law does not provide for cohabitees. Such documents can be incredibly detailed and deal with a vast range of relevant issues that arise upon separation. They may require an initial investment, to draft and execute at the start of your relationship, but they could help save you several times that amount at the point of separation.
It just leaves me wondering whether Boris and Carrie have such an agreement in place. Dare I say, this may be a good idea, due to Boris’ already labyrinthine family responsibilities.
Fiona Spinks
Family law solicitor Cambridge
