Home sweet home? Cohabitees still an underclass

In 2013, couples in the UK who live together without getting married or entering into a civil partnership still have very limited financial protection, in the event of a break-up.  Sadly, anyone who believes the law will look after them by virtue of  their ‘common-law marriage’ will be in for a nasty shock, even after a long relationship or where there are children to consider.

For all the parliamentary time rightly being given to marriage equality for gay couples, existing provision under the Civil Partnership Act does at least mean that civil partners are afforded the same financial protection as married couples if their relationship breaks down, even if genuine equality is yet to be achieved.  However there is a significant and growing number of people, gay and straight, who are in committed relationships but have very limited legal protection if their relationship breaks down.  According to the Office for National Statistics, there are more than 3 million such UK families, double the amount in 1996.

Couples who start living together and pooling their financial resources do have the option of ‘contracting in’ to various financial remedies in the event of a split.  Just as couples who plan to marry can enter into a ‘pre-nup’, so couples moving in together can create a Living Together, or a Cohabitation Agreement.  This creates contractual obligations between partners, in the same way as the marriage or civil partnership contract does automatically.

Understandably, and particularly in these austere times, people do not want to add to the long list of expenses when buying a home together by asking a family law solicitor to draw up an agreement.  After all, it’s hardly a romantic start to living together and the money saved would definitely come in handy.  However the rather brutal reality is that one partner (usually the less financially astute) is at risk of becoming homeless and/or having nothing to show for their efforts, in the event of a split.

Consulting a family law solicitor independently before moving in with your partner, and more importantly before you buy a property together, is essential for preventing potentially catastrophic problems down the line.  Unless your name is on the title deeds to a property, proving you have financial rights in respect of your home can be a very costly and complex process.  If you have children there are more options; child support can be enforced via the Child Support Agency and the family courts can make financial provision for dependent children under Schedule 1 of the Children Act 1989.  However provision ordered by the court will usually end when a child reaches 18, and so offers little in the way of long-term financial security.

From time to time these issues are covered by the press, but there has been nothing like the pressure exerted in favour of gay marriage, for example, to force the government to alter the legislative framework for cohabitees. I make this comparison because successive governments have cited ‘public policy’ reasons for failing to create rights for cohabitees; the same reason cited for many years to justify discriminating against gay couples before the more enlightened times of civil partnerships.  Is it time to do away with the legal underclass that is the cohabitee?

The case of Pamela Curran, who earlier this year challenged a court ruling that she was not entitled to share the value of her former home and business with her ex-partner because she was not a legal owner, is a good case in point.  Ms Curran had been with her partner for more than 30 years; since its purchase in 2007 both had lived and worked together in their kennel and cattery business. Perhaps naively, Ms Curran thought that if they broke up she would be given her ‘fair share’ of the assets.  However the court ruled that no business partnership had ever been made and so the judge awarded Ms Curran nothing.

Ms Curran has been given leave to appeal but a date for this is yet to be decided; watch this space for an update as to whether the higher courts in the UK are prepared to overrule the original judgment and give cohabitees cause to hope  that an arguably fairer system may be around the corner.

If these issues affect you contact our team of expert family law solicitors for a free initial consultation.

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