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Many people assume that they have legal rights if they cohabit, particularly if the relationship lasts for many years. However, if you are neither married, nor in a registered civil partnership, you can join the end of the queue for legal protection.
On 5th November 2005, the Civil Partnership Act 2004 came into force. This Act enabled same-sex couples to register their partnership and they gained similar rights to married couples. This includes inheritance tax benefits and receipt of dependent’s pension benefits when one partner dies.
If the same-sex couple end their relationship, they have the same entitlement to make a claim in Court for financial relief to divide the couple’s assets as a divorcing couple does. The matrimonial court can make financial orders dealing with the division of property, pensions or other assets and can order spousal maintenance.
If a cohabiting couple with children separate, the resident parent, usually the mother, may find herself reliant for income on child maintenance payments claimed through the Child Support Agency. The resident parent cannot claim maintenance for his or herself and whilst some capital claims (eg of a lump sum payment) can be made through the Children Act 1989, these would be justified only if required for a specific purpose to meet the child’s needs, rather than the parent’s needs.
In addition, a cohabiting father whose child was born before 1st December 2003 does not automatically have ‘Parental Responsibility’ (the right to be involved in making key decisions relating to the child’s welfare) for his child and will only acquire it by formal agreement with his ex-partner or by court order.
If the separating couple own property together, or a property is owned by one party, but the other has made some form of investment in it, unravelling the parties’ legal entitlement to the property can lead to complex and costly litigation.
So, if a couple are cohabiting, what can they do to protect their position? They can:
- Sign a cohabitation agreement, preferably before cohabiting, saying how assets will be divided in the event of separation
- Make a Declaration of Trust, which will state the proportions in which property is held and what will happen to the property in the event that the relationship ends
- Make Wills, leaving their estate to their respective partners and appointing each other as guardian to the children
- Enter into a Parental Responsibility Agreement if the father does not have Parental Responsibility already
The Department of Constitutional Affairs has recently commissioned the Law Commission to undertake a project on the law relating to cohabiting couples, specifically as it relates to the end of their relationship, through separation or death. Whilst this might lead to longer term changes, there is however no current prospect of a change of law on the horizon to protect cohabiting couples.
For further information or advice on this, or any other aspect of family law, please contact either Tim Melville-Walker (01730 268211) or Deborah Taylor (017730 816711).
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