How a new reference source will help cohabiting couples to separate

Emma Collins, National Head of Weightmans’ Services for Individuals, and member of both Resolution’s Cohabitation and Drafting Committees, has contributed to a major reference source for family law practitioners in England and Wales.

What is the publication?

Resolution publishes a number of good practice guides and specimen precedents to assist family lawyers. The latest precedents, including an introduction by Emma, are designed to assist solicitors to prepare separation agreements for cohabiting couples.

Why is it important?

The number of cohabiting couples who have not married or entered into a civil partnership continues to increase. In 2020, 13.1% of the population aged 16 years and over were cohabiting. This amounts to over 6 million people, compared to just less than 4 million in 2002.

Over the last decade, the number of people living together having never been in a marriage or civil partnership has increased, particularly for those aged 55 to 64 years. Over 5 million people are living together but choosing not to marry/enter a civil partnership.

However, many are unaware that this remains an area that is lacking in legal protection for couples if a relationship breaks down.

The myth of the common law spouse

It remains a popular misconception‎ that, once a couple have lived together for two, five or more years, they acquire the status of a ‘common law spouse’ and, with it, financial remedies on separation if the relationship breaks down. This is wrong.

It is incorrect to say that in all situations a cohabitant in England and Wales has no legal rights in the event of a relationship breakdown, but the legal remedies are extremely restrictive and based solely on the law of property and trusts, rather than any element of fairness/discretion, as would apply on a divorce or civil partnership dissolution.

Unless the couple start a family together, when a different legal regime applies to cater for the financial needs of any children (albeit the regime is not as generous as that on divorce/dissolution), there is no obligation for one party to support the other with maintenance payments, and there may well be no recourse to any property/a home or pension.

The court is unable to consider the financial and housing needs of the parties and cannot take into account non-financial contributions to the relationship, such as looking after the home or caring for any children of the relationship. This can leave one partner extremely vulnerable if the relationship subsequently breaks down.

The call for law reform

Resolution calls for a legal framework of rights and responsibilities when unmarried couples who live together split up, to provide some legal protection and secure fair outcomes at the time of a couple’s separation or on the death of one of the parties.

Cohabitation agreements

Pending law reform in this area, it is prudent for all cohabitants to consider entering into a cohabitation agreement, if they have not already done so at the start of their relationship. Such an agreement can set out the couple’s intentions regarding not only financial arrangements whilst they live together, but also the ownership of assets upon separation.

With Emma’s input, Resolution have already published precedents to assist couples entering into a cohabitation agreement.

Why is a separation agreement needed?

Many couples seek — and need — a final, binding, and comprehensive separation agreement. Many cohabiting couples own homes and other property together, have common business interests, have joint bank accounts or other investments, are employed by their partner’s business, are informally maintained by their partner and so on. These issues need to be unpicked and resolved if the relationship ends.

Not all separating cohabitants want to see their former partner bereft of a home and nor are they all unable to reach agreement.

Many couples elect to use family mediation to support them in negotiating a financial solution which works well for their family.

Many agree to ongoing financial obligations or connections because of children and housing or because they are in business together. On separation, they require a formal legal agreement making clear the terms of their separation and what they each commit to do now and in the future.

Resolution is introducing these cohabitation separation precedents as a much-needed resource to support parties to negotiate solutions including where there may be no cohabitation agreement, with a view to avoiding a dispute altogether if their relationship breaks down or the unnecessary use of the courts.

It is the intention that any such separation agreement will be binding.

Summary

Resolution’s lead in campaigning for law reform is needed as much now as it has ever been. Until then, cohabiting couples need a greater awareness of the limitations of the law, and to be reassured that family law solicitors are able to assist them in reaching a suitable agreement on relationship breakdown in a creative, flexible and supportive way.