Marriage is not for everyone. Some couples cannot afford it while others prefer to avoid the formality, regarding marriage as a public declaration of love which they do not need to prove to anyone other than themselves.
The number of cohabiting couples has increased dramatically over the last 20 years. Unfortunately, the law offers very little financial protection for such couples when their relationship breaks down and also if one of them dies. Even cohabitees who have lived together for a number of years are not afforded the same rights on separation as those who are married or in a civil partnership. There is no such concept as the 'common law husband/wife'.
Legislation entitles divorcing couples to make a variety of claims against each other such as for maintenance for themselves, for lump sums of money or for orders in relation to pensions, with the most common being for pension sharing. It does not matter who owns the asset as the court will take into account all of the income and capital resources and have discretion regarding any financial settlement to achieve a fair outcome.
In contrast, when cohabitees separate assets will be retained by the person who owns them unless the other can show that they have created an interest in the property in question in the event of a dispute. This involves reliance upon complex trust and property law. Cohabiting couples cannot seek maintenance other than for children, they cannot apply for an order for a lump sum payment and cannot claim any share of their former partner's pension.
The Government has talked about giving those who have lived together for a period of time some of the same rights as those who are married or in a civil partnership but so far, this is only talk and the law has not changed.
To avoid difficulties in the future, cohabiting couples may wish to consider what should happen in relation to the ownership of their home, its contents or any other assets in the event of their separation and can do this by entering into a Cohabitation Agreement. Such an agreement will also govern the financial arrangements between the couple while they are living together.
Although a Cohabitation Agreement is not automatically binding on the court, it can be taken into account as clear evidence of what the couple intended at the time it was signed. It should carry considerable weight when the court is being asked to make a decision about how the assets are to be divided provided that both parties have fully and frankly disclosed details of their financial circumstances to each other, they have understood the agreement and have each received independent legal advice on its terms, there has been no undue pressure, with each party having had time for reflection before entering into the agreement and special care has been taken regarding children with, for example, reviews being inbuilt to cover the birth of a child.
Resolving these issues while relations are good and strong can be relatively quick and easy. If left until the relationship has broken down, a lengthy and expensive dispute may arise and acrimony can result at an already unhappy time.
