Cohabitation rights for couples

Posted on 14 March 2019

Cohabitation rights for couples

There are several particular issues where both law and society appear to be operating in different spheres.

One that causes concern is the law's treatment of cohabitating couples. Numbers of marriages are declining, but no steps have been taken to provide even the most basic legal protections for cohabitees, and more importantly, for their children.

Family lawyers are aware that the case for law reform is as overwhelming as ever. Why the delay? While other countries (including Scotland and Ireland), have been able to provide some legal remedies for cohabitants, why not England & Wales?

Moreover, if we are to accept the statistics from the National Centre for Social Research (January 2019 ) that most cohabiting couples mistakenly assume they are in a "common law" marriage - with the equivalent rights and protections as though legally married – this shows that the public awareness campaigns to inform them of the lack of these legal safeguards have clearly failed.

Often where there are children, difficult financial decisions need to be made and if work cannot be found that is compatible with child-care, sacrifices will need to be made. This may leave the carer disadvantaged both as to career prospects and just as importantly, their own future financial security.

Yet if not married, and should the relationship break down, the stronger economic party is able to walk away without financial responsibility towards their partner.  When coupled with outdated views on cohabitants having (non-existent) 'common-law rights', this creates a ticking time bomb for many of those cohabitants who choose not to marry.

Reform of the law is required. Raising awareness of the need to seek whatever protections are currently available is also necessary. This can include declarations of trusts (to regulate property ownership) and other options such as insurance products or wills. However, couples also need to minimise risk.

If they choose to cohabit, recognition needs to be given from the outset that if their relationship breaks down, they will have appropriate protection to minimise the potential loss suffered by the financially vulnerable partner. This could be in the form of "opt-in" or "opt-out" binding cohabitation agreements, or in the creation of a scheme whereby cohabitants may, in appropriate, cases, make financial claims against each other. If inequality in the workplace is no longer being tolerated, then inequality at home also needs to be addressed.

Yet while employers are being required to find and promote working models that support family life, there also needs to be a significant shift in society’s assumptions as to the responsibility of child care. Only then will we see the much needed reform in areas including the family justice system.

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