Every year the judiciary heralds the need for a reform of cohabitation law for those couples who choose not to marry. I am reliably informed that this issue has been on the radar for more than 40 years!
Any reform is likely to see legislative changes which seek to put cohabiting couples on more of an equal footing with their married counterparts on separation. Nevertheless, small steps towards better protection for cohabitants would doubtless be welcomed by those choosing to live and have children out of wedlock.
Currently, the courts have no powers to redistribute the assets of cohabiting couples on separation, however long the relationship has lasted. The President of the Family Division, Sir James Munby, has recently commented: “It is inconceivable that society will not right this injustice in due course,” and further remarking: “How many women are to be condemned to injustice in the meantime?” The current law does not appear to follow public opinion.
It is accepted among family practitioners that the ‘common-law spouse’ myth has led to cohabiting couples relying on the mistaken belief that they are afforded the same rights and protection as married couples. By law, you can either be married or not. Currently, unmarried couples seeking separation are reliant on trusts and land law for financial remedies. This could result in one party being forced to move out of a property which has been his or her home for many years. The situation is slightly improved if there are children matters to resolve, as the resident parent also has the ability to look to the Children Act for a financial remedy, but such support is considered on a case-by-case basis. In most cases, any financial award will be a short-term solution as property or capital is likely to revert back to the other parent when the children are older.
There is no immediate reform on the horizon. However, a Cohabitation Agreement can be an effective way of minimising distress during a separation, especially in cases where there are children born to the parties.
For information about Cohabitation Agreements, please contact Jolene Hutchison, Head of Family and Divorce at firstname.lastname@example.org or on 01494 478 603.