04 August 2007
Are you living with, but not married to, your partner? Do you believe you are entitled to a share of your partner's assets if the relationship breaks down?
The fact is, the concept of a "Common Law Spouse" is a myth and you are not necessarily entitled to a share of your partner's assets on the breakdown of the relationship.
As a popular lifestyle choice amongst many younger couples and divorcees who do not want to go through the upheaval of a second marriage, the number of unmarried couples living together is set to rise dramatically over the next few years, and reach 3.8 million by 2031, according to government statistics.
If you are unmarried and not in a Civil Partnership but living with someone else, it is important to be aware that you do not have access to the same statutory remedies as married couples or civil partners to deal with the financial consequences of your relationship ending, through separation or death. Without the potential safeguards of Cohabitation Agreements, Declarations of Trust and Wills, all you have is a patchwork of legal rules, which are complex, uncertain and can be expensive to apply.
To try and relieve this, the Law Commission published a report at the end of July confirming its view that the legal situation for cohabitants is unsatisfactory, and needs updating.
The Law Commission proposed that you would have an automatic right to make a claim against your partner if you:
1. have a child together or have lived with your partner for a specified number of years (no specific recommendation was made but it was suggested that a period of between 2 and 5 years would be appropriate), and;
2. you are able to show that your former partner had retained a benefit, or you had suffered an economic disadvantage, as a result of a contribution made by you. That contribution need not be financial but could be a contribution made to your shared life together for example by sacrificing your career to raise children.
However, the lengthy report is definite in its unwillingness to treat cohabitants as if they were married and, whilst they recommend that remedies should be available within a legislative framework in certain circumstances, these remedies will not apply to all couples and you could still be left financially vulnerable in the event of the breakdown of your relationship.
There is also no certainty that their recommendations will become law, and public opinion remains divided about whether the State should impose obligations on people who choose to live together. It may have been in recognition of this that the Commission also recommended that couples should have the right to opt out of the scheme by means of an "opt out" agreement.
Until such a time as these recommendations become law, there are provisions you can make today to protect you, your family and your assets through a Cohabitation Agreement which also gives you autonomy over your personal arrangements.
Although not legally binding, they are a prudent means of ensuring that both partners are fully aware of, for example, the ownership of the home, its contents and other personal possessions, bank accounts and common expenses.
Separately, Declarations of Trust are also a simple and effective way of ensuring that interests in property are properly set out. A sole owner, for example, might want to recognise a contribution made by another person or joint owners may want to record respective shares that they own in the property.
It is also advisable to make a Will, or update an existing one.
We wait to see how the government responds to the Law Commission's report, but in the meantime these measures may save any unnecessary arguments at a later stage and allow you to enjoy your cohabitation unburdened.
Sue Andrews is a partner and Annette Keevil an associate solicitor in the respected family and matrimonial law team at B P Collins Solicitors.
The team are able to provide expert legal advice to all couples concerned about their rights when cohabiting.
Contact 01753 279045 or email familylaw@bpcollins.co.uk. |
