Cohabitation Rights – still a long way away

Couple holding hands - cohabitation rights for Gillbanks Law

Couple holding hands - cohabitation rights for Gillbanks Law

Family lawyers have been eagerly awaiting new legal cohabitation rights for couples for some time now, but despite the introduction of the Cohabitation Rights Bill to the House of Lords in March 2019, so far there has been little progress in this complicated area of law.

Cohabitation is now the fastest growing family type in the UK – there are more than 3 million couples now choosing to live together without a legal union such as a marriage or a civil partnership. This can lead to problems if the relationship breaks down, as despite attempts to raise awareness of the subject, many people still believe that there is such a thing as a ‘common-law partner’ – there is not. The only legal rights currently available for cohabiting couples relate to jointly owned property or financial provision for children under 18.

Cohabitation rights – property

If a property is not jointly owned, the non-owning party may have rights, although enforcing them will often involve litigation; if it can be proved that one of the parties has contributed a significant amount towards the home, whether by contributing towards the purchase price, making mortgage payments, paying for home improvements or showing there was some joint intention as to acquiring an interest. In some cases, however, the cost of enforcing these rights can be more than the eventual award.

Cohabitation rights – financial provision

The financially weaker party may also make a claim under the Provision for Family and Dependants Act 1975, but to be successful in this type of claim, they would need to prove that they were financially dependent on the other party throughout the relationship. This could also be costly to pursue.

The Cohabitation Rights Bill

In March 2019, Lord Marks of Henley-on-Thames, introduced the Cohabitation Rights Bill to the House of Lords with a view to protecting couples who have lived together for three years or more, along with the rights of any ‘relevant’ children of the relationship. Former cohabitants would also have the legal right to apply for a financial settlement order and

‘enable courts…to adjust the financial position of qualifying cohabitants on relationship breakdown, so as to spread the financial consequences, benefits and costs fairly between them’.

The Bill also introduced the option of ‘opt-out agreements’ which would give couples the freedom to sign an agreement that allowed them to opt out of any future financial settlements, on the condition that they had received legal advice.

Currently, if one partner dies intestate, the surviving partner is at risk of losing both financial support and their home. The new Bill would give the right to the surviving partner to claim a share of their partner’s estate under intestacy rules, and make sure that they could make a claim against the joint home in which they lived. A surviving partner can only currently make a claim to maintenance through the Inheritance (Provision for Family and Dependants) Act 1975.

The current position of the Cohabitation Rights Bill

The 2019 Bill is currently awaiting a second reading in the House of Lords. Unfortunately, along with a lot of legislation from 2019, it was shelved on the proroguing of Parliament in October. It’s unfortunate that currently England and Wales are behind many other countries with regards to legislating to protect the rights of cohabiting couples.

Barrister Andrzej Bojarski told the Law Gazette recently;

“Anything seen as potentially devaluing marriage or encouraging people not to marry because they have remedies elsewhere does seem to discourage parliament from doing anything about it.”

At the same time, a ruling by the European Convention on Human Rights has stated that ‘unmarried couples should have the same right as married people and civil partners to claim for state benefits such as bereavement payment and widowed parent’s allowance.’

As the legislation is likely to take some time to finally be implemented, organisations, such as Resolution, and family law solicitors have a duty to make sure that people are aware that unless they protect their relationship with a legal union, they could end up with no rights over a family home or a late partner’s estate. It is possible to draft a cohabitation agreement – something that we may be able to advise you about at Gillbanks Family Law.