Marilyn Stowe: The law on living together is Dickensian

As a family lawyer, at the top of my wish list for an incoming government is the speedy introduction of a law protecting cohabitant rights.

Some will no doubt shake their heads in disagreement at the prospect of legitimising “living in sin”, taking the view that this will further devalue the institution of marriage and cut the number of couples who choose to tie the knot. I respectfully disagree.

If cohabitants knew there would be financial consequences in the event of a breakdown it would enhance the benefits of marriage – such as from a tax point of view – and make it a more attractive option. But for many couples, whether through more accepted societal norms, ignorance of the law, or a flat refusal on the part of one party to consider marriage, cohabitation is the option of choice. And it is steadily increasing in popularity.

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Cohabitation has risen in the UK by nearly a third in the last decade with 
over six million people now living together, with millions of children between them. So it baffles me why, since 2007 when the Law Commission recommended legislation, two successive governments have refused to recognise that these families urgently need legal protection when things go wrong.

Scotland has its own cohabitation law, but the rest of the UK, oddly, does not. Both the Law Commission and the Supreme Court have strongly recommended legislation, not I hasten to add, a divorce-type settlement but rather one that would recognise and compensate for economic loss for cohabitants in a qualifying cohabitation relationship.

This type of legislation is not envisaged as a free-for-all, but for those cohabitants entitled to make a claim.

It would apply to the poorer party who, having raised a now grown-up family, faces destitution. Yet despite these well-known and obvious hardships for many people who are literally thrown onto the state for help with housing and income, we remain stuck in the dark ages; making do at best with outdated Chancery Law that is more at home in a Dickens novel.

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Most couples who chose to live together appear blissfully unaware of how it could all end, that they don’t have the same rights or tax advantages as married couples when a relationship breaks down.

Part of that is because of the myth of the “common law” husband or wife, which actually has no basis in law. If one partner is financially dependent on the other there is no legal relationship created, no automatic right to share in financial assets like property, income or pensions. No automatic right to share on death either.

The other myth is that the length of time you’ve cohabited makes a difference, but that too, isn’t the case. Recently before the Court of Appeal was a woman who had lived with her partner for 33 years in his house, and was horrified to learn on his death that she was entitled 
to nothing from the home which was in his sole name.

The mortgage on the house was in arrears and eventually after a fight to impute “a common intention” in the Chancery Courts it was held she was entitled to just a quarter of the value of her late partner’s house, after deduction of the mortgage. Some may say the award came more out of sympathy for her plight than the application of strict law.

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One wonders how much of the heavily contested estate will be eaten up in legal costs before any beneficiary receives a penny.

There are ways to safeguard yourself against any future relationship split such as a Declaration of Trust as to the ownership of a house and a Cohabitation Agreement which will clarify who pays what and what would happen to contents and so on if the relationship comes to an end. On death, a well drafted will should help too, particularly given the taxation disadvantages of cohabitation.

But, in the end, these solutions only tinker around the edges and while I certainly would recommend them all, none provides for cohabitation breakdown as comprehensively as a new tailor-made law that is fit for the purpose of our 21st century lifestyle.

I’m calling on all parties to take a stand on this and for the next government, whoever they are, to follow the recommendations of the Law Commission and the Supreme Court, protect the rights over six million people across the country and bring in a modern law for a modern society.

Marilyn Stowe is senior partner with Stowe Family Law LLP

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