Member Article

The risky business of living together

Latest figures from the Office for National Statistics (ONS), reveal that cohabiting families now make up 17 per cent of all families in the UK.

The numbers of cohabiting couple families in the UK rose to 3.2 million in 2015 - representing an increase of 29.7% since 2005 – and making them the fastest growing family type in the UK.

Thankfully we live in a free society where couples can choose to live together and bring up their children without “tying the knot”. However, in my experience as a family lawyer, they do so at their peril as few understand the enormous risks they are taking by failing to say “I do”.

The brutal reality is that cohabitation can leave people at enormous financial risk – and even homeless - should their relationship break down.

Very few people who cohabit have even the slightest idea as to their legal rights to property, maintenance or pensions in the event of separation. They may believe in the old adage that “marriage is just a piece of paper”, however that view is simply - and possibly dangerously – wrong.

Not merely a “piece of paper”, marriage remains the only means of ensuring that both parties can end up with a financial settlement which is fair to both of them, should the marriage fail. The court has the flexibility to make orders to ensure that the assets are divided fairly, that both parties can meet their outgoings, and that they can be secure in their retirement.

If an unmarried couple separates, there are no such safeguards. Strict legal principles apply that will determine what each of them are entitled to – regardless of the length of their relationship, or whether they have children. In the case of cohabittaion there is no requirement by law to consider fairness in arriving at that assessment - in fact, the law can very often lead to hardship and unfairness.

Unfortunately I see too often the consequences of a breakdown in a cohabiting relationship. I have been approached by clients concerned as to what rights they may have - or indeed what rights their former partner may have. I have to tell them that it may be too late – the damage may already have been done.

Couples planning to live together should take legal advice before they move in together. It may sound unromantic, but it is in both parties interests to do so.

A couple needs time to consider, and agree what rights they have, or intend to have, both during their relationship, and in the event of their separation. In particular, they should consider the following questions:

Who is going to own their home? If it is to be jointly owned, in what shares will the property be held? Who is to contribute toward the mortgage and other household bills, and how will that work in practical terms? In the event of separation, will one party have the option to “buy out” the other’s share of the property? What is to happen if there are children? How would the children’s’ needs be met? If the couple buy any items of property in future, in what shares should they own it? How is that to be calculated?

This is not an exhaustive list as often agreements between a couple are tailored to their own specific needs and requirements.

Any agreement should be in writing and preferably drafted by lawyers who can advise on the law and ensure that the document is “watertight”.

Sadly there has been little appetite by any government to change the law. Unless - or until - there is a fundamental legislative change, there will continue to be cases of cohabiting couples going to court if their relationship fails. They will do so at enormous expense within a Family Court system that is trying to apply old fashioned principles of law to 21st century problems.

I would advise anyone who is considering cohabiting, is to speak to an experienced family solicitor who specialises in this complex area of law, before taking the plunge. After taking advice, I would recommend that they have a written cohabitation agreement.

This was posted in Bdaily's Members' News section by Wayne Lynn .