Posted by The Family Law Company on 23rd December 2014

Cohabitation DevonCampaigners for enhanced rights for cohabitees suffered another setback when major changes in the law of intestacy in October 2014 still offered no protection for unmarried couples. It had been expected that the changes would include rights for people living together in unmarried relationships for at least five years prior to the death of one of them to have rights to inherit their partner’s estate.

However, the changes failed to materialise and cohabitees still have no automatic right to inherit if their partner dies without leaving a Will.

This latest setback for unmarried couples follows the failure of parliament to act on the recommendations of the Royal Commission on the rights of cohabitees in 2007. The commission recommended the introduction of legislation to provide rights to unmarried partners to claim from their partner in the event of separation. The government responded that it was awaiting developments following the passing of the Family Law (Scotland) Act in 2006. This has proven to be a successful piece of legislation for unmarried couples north of the border, but as yet, there is no sign of a change in the law in England and Wales.

In recent years the number of people choosing to live together outside of marriage has exceeded the number of relationships within marriage.  In the modern world of tolerance and choice where it is no longer felt necessary to marry to have a stable long term commitment to one’s partner and family, the law in England and Wales continues to lag behind the social reality.

What difference does it make to financial settlement if you are unmarried?

For the married partner, the law is clear. Outcomes are predictable and fair due to discretionary powers given to the courts by act of parliament.  In contrast, cohabitees must rely mainly on legal principles based on decided cases rather than statute. The application of these principles can result in very different and sometimes unfair outcomes for cohabitees as well as expensive, time consuming litigation.

The principle difference in the approach to resolution of disputes between the married and unmarried parties is the lack of any discretion for the courts to address issues such as adjustment of capital or property rights to take account of needs, the length of the relationship, states of health or lost pension rights for unmarried parties. Instead, in the case of unmarried couples, the search is for what the parties agreed when purchasing property together or (exceptionally) at important moments during their relationships.

 

What staturory remedies are available to the unmarried person?

Limited protection is provided by the Inheritance Act 1975 which gives rights to bereaved unmarried partners to claim from their deceased partner’s estate on death provided the couple were living together for at least 2 years prior  to the partner’s death and the survivor is financially dependent on the deceased at the date of their death.

There is also a measure of protection in the form of Schedule 1 to the Children Act 1989 for the children of unmarried former partners which enables the courts to order financial provision for the benefit of the children including transfer of property, lump sums and child maintenance.

What can be done to protect unmarried couples living together from future dispute?

Unmarried partners are well advised to seek to clarify their respective rights at an early stage in their relationship by entering into a cohabitation agreement or declaration of Trust (a deed which defines their respective interests in property owned by one or both of them). These simple precautions would prevent many disputes from ever occurring.

And if we have separated without any agreement about our rights?

For those facing separation without the protection of an agreement, it is important to seek specialist advice at an early stage. Because of the nature of the legal issues, traditional solicitors’ practices often find these disputes difficult to allocate. An unmarried client can find themselves advised by the civil litigation department (who understand the legal principles, but are not attuned to the emotional difficulties associated with separation) or the family department of a firm (who understand the latter, but often have a poorer grasp of the legal issues). The result is often an unhappy, confused and delayed outcome.

We can help

At the Family Law Company, we have a dedicated team of lawyers dealing exclusively with these matters. We have a detailed knowledge not only of the legal principles involved, but also of the particular difficulties faced by separating couples. As such, we are able to offer our clients a unique, comprehensive and unrivalled service.

The Family Law society accreditation in Advanced Family lawImage of The Law Society Accreditation of Children Law.
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