If you’re unmarried, you don’t have any automatic right to a share in your partner’s property. This is the case even if you have been cohabiting for many years and your finances and assets have become mingled. It’s also in stark contrast to the position of married couples and those in a civil partnership who can apply to court for financial provision in the event of divorce or dissolution.
As a cohabitee you’ll have to rely on areas of law like contract and trusts if there is a dispute over property ownership if your relationship ends. Making a claim under the general law like this is an uncertain and expensive prospect.
For many years campaigners have sought to change the law so there is some protection for cohabiting couples when their relationship breaks down. In August 2022 a House of Commons committee recommended a radical shake up of the law that would have considerably enhanced the rights of cohabitees. In November 2022 however the government announced it would not act on the proposals and instead opted to maintain the status quo.
As family law solicitors the current law in relation to cohabitees means ensuring that our clients understand the importance of drawing up a Cohabitation Agreement. Below we look at what was proposed in terms of changing the law, we consider the government response and highlight what you need to consider when entering a Cohabitation Agreement.
The Case For Changing The Law To Protect Cohabitees
The August 2022 report by the Women and Equalities Committee of the House of Commons suggested that the general law (contract and trust law primarily) on which cohabitees have to rely on if there is a dispute over property is so complicated that even experienced lawyers find it difficult to predict likely outcomes for their clients and provide practical advice.
The kind of claim we see cohabitees having to make after a relationship breakdown include:
- Establishing the proportion in which a property should be split (i.e., even when the parties agree it is shared property)
- Seeking orders to enable a cohabitee to remain in the home, particularly when there are children
- Defending a claim for a share in a property that is in the sole name of one partner
- Making a claim for compensation after having contributed financially to the upkeep of a partner’s property or after having contributed to the mortgage
In respect of this last point the committee highlighted that contract and property law often require the partner seeking financial provision to prove tangible financial contributions to an asset like the family home (mortgage contributions, meeting repair bills and so on). Childcare and other contributions aren’t automatically recognised in the way they are by family judges who make financial orders for divorcing couples.
Maintaining The Status Quo
Following the report the government took the decision not to act on the proposals. It indicated that before it tackled the issues raised in the report the ongoing work around reforming the law on marriage and divorce needed to be concluded.
The government did agree to look at proposals to make information about the legal position of cohabitees more publicly available, and to consider how the rights of cohabitees to a share in a deceased partner’s pension might be better secured.
What Can Cohabitees Do To Protect Their Financial Position?
The government decision disappointed campaigners and the MPs who prepared the report. There may well be sound policy reasons not to proceed with law reform at this point. For our clients who cohabit however the practical takeaway from the House of Commons report and the government’s reaction to it is that there will not be any imminent change in the way property is split following the breakdown of your relationship.
The need for a cohabitation contract or ‘Living Together Agreement is as important now as ever.
At Brookman we offer bespoke advice on these types of agreements. They set out what property belongs to each partner and in what proportion any jointly owned assets are held. The agreement will also specify the way financial assets should be split in the event of the relationship ending.
If drafted, signed and witnessed properly these agreements should be legally enforceable. Crucially each cohabitee must get separate legal advice to ensure the agreements are entered into in a transparent way with both sides understanding what they are agreeing to.