More and more couples are choosing to live together outside of marriage. Some because marriage is just not for them.  Others because whilst marriage may be on the horizon at some point, it’s just not a priority.

By 2031, a quarter of all couples will be cohabiting outside of marriage

It is hard to deny that relationships have moved on over the last 50 years. Statistics tell us that by 2031 a quarter of all couples will be cohabiting outside of marriage. Currently over half of children born are born outside of marriage.

So it surprising to many that the legal protections offered to those who cohabit, even where there are children involved, are significantly different to those who are separating after a divorce.

Don’t believe the myth of the ‘common law’ husband/wife

Many people still believe the myth that by cohabiting you will become each other’s ‘common law’ husband/wife.  Sadly that is simply not true. There’s no legal entitlement gained by either party simply because you have been living together.

If you are married and divorce the Court will look at your financial situation from a needs basis. What there is in the ‘matrimonial pot’ and how it can be shared in a way that is fair and supports both the needs of the husband and wife. As well as the children of the family.

Contributions are taken into account, but these are not simply in terms of financial contributions. This includes the physical and emotional contributions to running the home, looking after the children.

As well as the financial implications on the ‘stay at home’/part time working parent on their realistic future earning capacity. Matters are complex and detailed, with a view to making things as fair as they can be.

With a cohabiting couple (even with Children) the Court deals with things very differently

With a cohabiting couple, even where there are children of that relationship, the Court deals with things very differently. Financial matters are very much dealt with in relation to Trust and Land Law.

Let’s say one party owns the property and the other does not. It doesn’t matter how long they lived in the property, the non owning party may well be looking at receiving very little, if anything, from the sale of that home. That’s even the case where the non owning party is caring for the children.

This can lead to numerous unmarried parents and children being left essentially homeless after separation. Had they been married, the situation may be significantly different. Particularly where one party owns the family home in their name (perhaps they are working full time and the other parent is caring for the children full time).

This can be a particular issue where domestic abuse is prevalent in the relationship. Particularly where the domestic abuse is in the form of financial and coercive controlling behaviour.

For example, where one party owns all of the assets, and the other is too scared to leave because they are afforded no protection.  Protection they would have got had they been married.

Victims remaining in abusive relationships can feel trapped, worried how they will provide for their children if they leave. Often being told by their perpetrator that they will lose the care of their children without somewhere to live. Victims can feel petrified that they will have to hand over their children to the perpetrator, or even social care, if they dare to leave.

Protecting yourself when cohabiting without marriage

There are ways to attempt to protect yourself as a party to a cohabiting relationship. Start by putting in place clear legal agreements at any time (but preferably at the outset of the cohabitation) of both parties’ intentions. Both in terms of ownership of the family home, either through Trust documents and/or through the signing of a Cohabitation Agreement.

This agreement confirms what the parties intentions are regarding the property if they separate. As well as other issues such as the care of the children. Keeping clear records of monies you have put into the property is important. Especially if you want to be able to show that you may have a claim. For example mortgage payments, monies for renovations etc

It is also very important to seek clear independent legal advice when looking at purchasing a home with your partner, particularly if you are not married and if you have, or are planning to have, children.

Obtain legal advice on co-habitation as early as possible

Clearly there is a real and urgent need for reform in relation to this issue and such reform is possible. However, until the law is reformed, cohabitees should be aware of the lack of protection that the current system provides them. We recommend you obtain legal advice at any time, but particularly at the outset of the relationship or when the relationship is ending.

For more information please get in touch with a member of our Family Law team today or email familyenquiries@fsmsolicitors.co.uk or call 01225 755621