Recently we have seen a number of clients which remind us of the pressing need for the long overdue reform of the law relating to cohabiting couples yet the parliament is not ready to address such reform.
Cohabitation, in lay terms known as unmarried couple living together is the fastest growing family type in the UK. There are almost 7 million in the UK living in a cohabiting relationship and almost half of whom are unaware of their lack of legal status and rights and thus vulnerability on relationship breakdown.
Often unmarried couples mistakenly ( over 46% of the public) believe that, once they have lived together for a certain length of time, they will become 'common law husband and wife', and would therefore have a legal status similar to a married couple. There is no such thing as a common law husband or common law wife in English law. When cohabiting couples separate their property rights are the same as those of strangers who have lived together. This is true even in the case of same sex couples who have not entered into a Civil Partnership. It is not clear why this myth persists, but if you are currently living with but not married to your partner, or are planning on moving in with someone in the near future, taking specialist legal advice from a solicitor could help you to ensure that your property rights are legally protected in the unfortunate event that the relationship breaks down. As an unmarried couple your rights are governed by the laws of property, which can be complicated and often result in a different outcome to that you had anticipated.
While heterosexual couples are able to enter into civil partnerships (as from 31 December 2019), this only effect the informed few who decide to formalise the legal status of their relationship. This does nothing to solve the problem that so many cohabitants face, as it does not address the fact that the current law does not adequately reflect or protect relationship living arrangements in modern society.
Legal Protection
There are no financial claims against a former cohabitant, regardless of the length or nature of the relationship saves for limited claims in respect of dependent children (under schedule 1 of the Children Act 1989).
A blatant reminder of the direct implications of this lack of protection was provided in the reported decision of the case Sandford v Oliver.
In 1988, Mr Sandford and Ms Oliver started a relationship. They both owned properties in their sole names. In 1993, Ms Oliver purchased a new property, again in her sole name, in Erith (the property). The parties moved into it in 1994. Over the next two decades, Mr Sandford, a builder by trade, spent a substantial amount of time renovating the property. His works included extending the garage, fitting a new kitchen and installing a swimming pool.
At some point, the parties purchased two investment properties in Lanzarote in joint names. The rental income went into a joint account, which was used to maintain both the Lanzarote properties and the property.
In 2017, the parties’ relationship broke down and Mr Sandford moved out. Mr Sandford claimed he had a beneficial interest in the property via a common intention (or family home) constructive trust.
Therefore, in August 2018, he applied for a restriction on the title to the property. Ms Oliver objected to the registration and the matter was referred to the tribunal under LRA 2002, s 73(7).
Mr Sandford admitted that the parties had never expressly discussed his beneficial interest in the property, so he had to rely on inferences from the parties’ conduct.
The Judge rejected these inferences and directed the Land Registrar to cancel Mr Sandford’s application for a restriction. Mr Sandford argued that there was an implied agreement that the rental income from all of the parties’ properties would be shared equally but the Judge held that even if Mr Sandford was correct the property would not be covered by it. Mr Sandford had only contended that the agreement related to rental income.
Therefore, as the property was never rented out (unlike the Lanzarote properties) the Judge held that it would not be covered by any agreement as to sharing rental income.
Then Mr Sandford relied on his contributions to the property and family life, in particular—the works he undertook to the property, the household bills he paid and the fact that he gave up work to care for the parties’ children.
Regrettably, the Judge rejected each of these arguments and concluded that the substantial improvement works he carried out to the property was to make the living arrangements more comfortable rather than undertaken because he thought he had a beneficial share.
Where do Cohabitants stand?
In a society where people are increasingly choosing not to marry and choose not to enter civil partnerships, it is essential that cohabitants’ rights are protected. Regrettably, cohabitation law reform continues to take a back seat and the law remains unchanged.
Over the last two decades, I have seen enormous changes in family law. Although family judges are forward thinking, open-minded, and fairness-focussed they can only work within the parameters of the statutory law.
Steps that you may consider taking before you move in together...
Cohabitation Agreement
If you are currently living together or planning to do so in the near future take our advice to ensure your rights are properly protected. You could avoid expensive and upsetting litigation later by considering these matters in advance and discussing with an experienced family lawyer what can be done.
As you set out on the path of living together you should carefully consider the implications of doing so. As we have already mentioned there is no specific law governing your rights when living together. It is important for you to consider at the outset certain financial and property matters so as to ensure that you are both in agreement about them. If you do not, they may become the subject of disharmony within your relationship or could even be the cause of you splitting up.
Pre- nuptial Agreements
If you propose to marry or enter into a civil partnership the best solution for reducing uncertainty and risk is a Pre-nuptial Agreement. The zeitgeist has changed so that they are no longer as has long been the tradition the domain of the rich or aristocratic families of Europe, becoming usual among couples with money in England in recognition of mutual autonomy and a desire to avoid expensive litigation.
Make a Will
Always consider making a Will. It is never too soon to make a Will. None of us like to think about dying but putting off making a Will may only complicate things for your family in the event of your untimely death.
Making a Will is particularly important for couples who are not married. When someone dies without making a Will (called dying 'intestate'), the Rules of Intestacy apply to their estate. Only married or civil partners and some other close relatives can inherit under the Rules of Intestacy. If you are not married to your partner, and do not have a valid Will, your partner will not be entitled to inherit anything.
Get Advice!
If you need advice on making a Living Together Agreement, cohabitation Agreement, Prenuptial agreement, or if you need advice on your rights on living together or after a split, our family lawyers can help. Get in touch through our online contact form.
