Most people are now aware that reforms to our antiquated divorce laws are in progress. The Divorce, Dissolution and Separation Bill, introducing the ability for ‘no-fault’ divorce without a 2 year waiting period, is awaiting its ‘report stage’ and third reading in Parliament. Whilst the shadow of Brexit and a potential General Election is likely to cause some roadblocks in these reforms being introduced, there is a good deal of support behind the idea of no fault divorce across the political spectrum.

Whilst the introduction of no fault divorce is a case of ‘when rather than if’, family law specialist Stuart Barton considers that the opposite appears to be true for the introduction of new laws to protect cohabiting couples from severe and damaging economic consequences when those relationships break down.

There is no such thing as common-law marriage in England and Wales. Living together in the same household does not automatically give anybody a right or entitlement to a property or assets held by their partner. It remains surprising how many people believe otherwise, often to their cost.

The attraction of cohabitation lies with its ease and simplicity. There is no need to buy a wedding dress or book a honeymoon for the couple involved.  It is therefore unsurprising that cohabitation has outstripped marriage significantly over the last decade. The number of cohabiting families increased by nearly 26 per cent from 2008 to 2018. The number of same-sex couple families has also grown by more than 50 per cent since 2015. There are more than four times as many same-sex married couple families in 2018, compared with 2015.

These trends are very significant but they hide the reality that the breakdown of any cohabiting relationship often brings more trauma and legal challenges than those of a married couple going through divorce. Married couples can rely on the law to help them in seeking maintenance, lump sums and pension sharing orders. The adjustment to life after a divorce is not always easy, but the law does not abandon married couples.

Unmarried couples lack any safety net. Property that is not jointly owned is likely to remain with the owning partner, usually the cost of the non-owner. Non-owners are forced to rely on complex and often old-fashioned principles of property and trust law to try and prove that they have an interest in property and the legal costs involved in such cases are often disproportionate to the assets involved. Quite simply, the law has failed to move with the times.

Will the law change to protect cohabiting couples?

There is a glimmer of hope on the horizon. The Cohabitation Rights Bill originated in the House of Lords back in July 2017. The idea of the Bill is to “provide certain protections for persons who live together as a couple or have lived together as a couple as cohabitants; to make provision about the property of deceased persons who are survived by a cohabitant; and for connected purposes.” That all sounds wonderful of course but the progress of the Bill has stalled, especially in comparison to the introduction of no fault divorce.

The Bill has go before it even reaches the House of Commons and hopefully Royal Assent. This is a marathon yet to reach the Committee Stage in the House of Lords. This is where the Bill is scrutinised on a line by line basis and amendments are debated. Thereafter, the Bill has a long way to and not a sprint to be sure. Until the Bill moves forward, the final content and implications of the Bill remain unclear. What is clear is that unmarried couples and families remain highly vulnerable to the adverse impact of separation with few legal protections available.

How can I protect myself?

If you are worried about your financial position in a cohabiting relationship, entering into a cohabitation agreement with your partner should not be seen as simply a ‘good idea’ but as essential as any form of insurance that you would purchase on a regular basis. A well-drafted cohabitation agreement can clearly record how the couple involved will share their finances while living together or what happens if one of them becomes ill, dies or they decide to separate.

Like any legal agreement or insurance policy it comes with some financial cost but in comparison to the significant emotional and financial costs of resolving a contested separation scenario, this is small change.

If you are unsure over where you stand when it comes to any of the above issues, do get in touch with Stuart on 01254 778148, or alternatively complete our Contact Us form and one of our expert advisors will be in touch.

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