A Fairer End to Relationships? | What the Proposed Family Law Reforms Could Mean for Co-habiting and Married Couples

There are approximately 3.5 million to 3.6 million cohabiting couples in the UK, representing the fastest-growing family type in the country. This figure accounts for about 17.7% of all family households, with approximately 6.8 million individuals choosing to live together outside of marriage or civil partnership, often believing they have the same rights as married couples. This widespread misconception has fuelled calls for reform in order to provide greater protections and certainty for cohabiting couples who separate.

The current legal position

There is no such thing as "common law marriage" in the UK. Regardless of how long you have lived together you do not acquire the same legal rights as a spouse or civil partner.

If your relationship comes to an end and you cannot agree whether you or your ex-partner has a financial interest in any property, such disputes can be resolved in court proceedings by utilising the Trusts of Land and Appointment of Trustees Act) TOLATA. Consideration is given to the legal title to a property as well as any financial contributions made and the intentions of both parties. These proceedings can be complex and costly.  This can leave a financially vulnerable party with no assets or financial support following a very long relationship. If there are children, it is possible to pursue a claim for financial provision utilising Schedule 1 of the Children Act but such claims are limited to providing sufficient resources to meet the needs of the children rather than the parent.

Why is reform being considered?

Relationships and family structures have altered dramatically over the years.  Living together and not getting married or entering into a civil partnership is becoming much more common place. Despite these changes, the legal framework has not altered.

Concerns have been raised that one partner could have made substantial non-financial contributions to a relationship such as caring for children or the house or family, often allowing the other partner to realise their own financial success and upon the breakdown of the relationship be left in a very insecure financial position.

The Law Commission's proposals

There is a recommendation for the introduction of a statutory framework for cohabiting couples. These proposals are designed to address economic disadvantage arising from the breakdown of a relationship. Under the proposed model, eligible cohabitants could pursue financial claims against their ex when they have a financial need to do so. Eligibility would depend upon;

1. Having lived together for at least three years or live together and share a child together
2. Being in a  “committed, romantic relationship.”
3. Being 18 years of age.
4. Bringing a financial claim within two-years of the end of the relationship.

Couples will be able to opt out of the scheme should they both choose to do so, subject to appropriate safeguards to ensure victims of domestic abuse are adequately protected.

Impact upon married couples

The proposed reforms also include a recommendation which was initially proposed in 2014 for nuptial agreements to become legally binding. At present, a party to a nuptial agreement can attempt to challenge the terms in a subsequent divorce. Such agreements are generally upheld by the court in a divorce subject to certain criteria being met. Making such agreements binding would provide much more certainty for married couples seeking to regulate how to manage their finances in the event of a separation.

There are also proposed reforms to divorce law.  The starting point for division of matrimonial property would be an equal division unless an unequal division was required to meet a capital or income need. This approach is broadly followed by the family courts now but may well be incorporated into the legal framework.

Are there any steps I can take now as a cohabiting couple to protect my position?

Until there are any changes to the law, cohabiting couples can take proactive steps to protect their financial interests to include;

1. Entering into a cohabitation agreement.
2. Clearly documenting how property is to be owned jointly, to include entering into a Declaration of Trust setting out the ownership shares.
3. Updating wills.
4. Seeking legal advice before cohabiting or making any significant financial commitment together.

For more information or to book a Preliminary Advice Meeting, please visit here.