Figures show that by 2031 one in four of us will be doing it. One in six of us do it now. Cohabit. The law governing cohabitation is misunderstood, complex, and often unjust, but this autumn will see an attempt to end the old uncertainties and bring the law in England and Wales right in line with society’s current trends.
Human Rights lawyer Lord Lester of Herne Hill QC will introduce a Private Member’s Bill in the House of Lords which could ultimately benefit unmarried cohabiting couples and their children.
It comes as a shock when cohabitees realise that the idea of a Common Law marriage is the stuff of myth. By then it’s often too late. Cohabitation Agreement? Well, it’s just not very romantic is it? Living together does not give an automatic right to a share in the home as in the context of a divorce. Maintenance? Pension Share? Forget it.
The current starting point is to look at contributions towards the house, its contents and living expenses. Sacrifices one party may have made for the relationship which are of a non-financial nature can also be relevant as well as the parties’ intentions and representations made to each other. These can be the very greyest of grey areas.
In a worst case scenario a cohabitee could find that having contributed to the purchase of the home, the mortgage and the bills, and having given up career and other property opportunities to live with a loved one, when the relationship breaks down they are left with nothing.
If it’s already too late you may need a solicitor to advise you of your relative entitlements in the hope that a sensible and fair apportionment can be agreed. If not, you will be at the mercy of the Courts!
Things may be changing however. Lord Lester’s Bill follows on from the Law Commission’s report on Cohabitation published in July 2007.
It is thought the Bill will include recommendations made in the Commission’s report, such as the idea that remedies for financial relief should be available on separation if the couple satisfy certain requirements. These may include the birth of a child, and the fact that the couple have lived together for a “minimum duration” of between two and five years.
The Commission suggested that the Applicant would also need to show that they had “made qualifying contributions to the parties’ relationship which had given rise to certain enduring consequences at the point of separation”. It is clear that this requirement may need to be more precisely defined in the impending Bill.
It will certainly be interesting over the coming months to see what sort of reception the Bill has in the Lords. If an MP in the Commons supports the Bill it will continue in the Commons, but will not have priority over Bills introduced in the Commons and will not therefore have much time devoted to it. If the Bill ultimately sees a change in the law will it do away with all the old injustices and uncertainties? Or will it create a whole tranche of new ones through retrospective adjustment of parties’ legal rights and obligations to one another where they have not married for one reason or another? Only time will tell.
In the meantime, entering into a Cohabitation Agreement and a Deed of Trust if property is involved may avoid expensive problems later. Here at Morrisons our experience is such that we can help with these documents with a view to minimising uncertainties in the future.
