Living together in the 21st Century
Once upon a time people fell in love and got married; however today cohabitees are the fastest growing family group and yet in England and Wales cohabiting couples have little or no legal protection if they separate. Surveys have shown that more than 50% of these couples have no idea they have no legal protection in the event their relationship breaks down or their partner dies.
A recent case has highlighted the importance for cohabiting couples to think clearly about their financial position and to give thought to what could happen to their assets in the event the relationship ends, or one of them dies.
Mrs Joy Williams, who had lived with her partner for 18 years, recently underwent the trauma of a lengthy court battle to secure her home after he had died. Her partner, Mr Norman Martin had never been divorced from his wife. Although Mrs Williams and Mr Martin owned their property together, they owned as tenants in common which meant that Mr Martin's half share did not automatically passed to her on his death Instead, his half share passed under his will (which he had not updated) to his former wife, Mrs Maureen Martin. Mrs Williams had to bring a claim that she should receive her partner's share of the jointly owned property. After a lengthy hearing the judge concluded that it was a fair and reasonable result that Mrs Williams, with whom Mr Martin had had a "lengthy and committed relationship" should keep the property without having to make any payment to Mrs Martin. This decision has come at a significant cost to Mrs Martin (who had to pay both sets of legal fees) and emotional cost for Mrs. Williams to achieve security.
This case highlights a number of things.
First, in hindsight, Mr Martin should have brought his marriage to his wife to an end at some stage, so that this ‘loose end’ was not left hanging. Doing nothing does not make a problem (or potential problem) go away.
Second, co-habitants (and indeed everyone over 18) should write a will and keep it regularly under review. Speaking with a solicitor about his will requirements should have highlighted to Mr Martin this problem lurking on the horizon, so that they could address it.
Third, there is a need for cohabitation laws in England to be brought into the 21st century. It is possible to live together with someone for decades, and even to have children together, and then simply to walk away without taking responsibility for a former partner which leaves many vulnerable.
In other countries such as Australia, Canada and, indeed even closer to home, in Scotland there is legal recognition of cohabitating relationships which provides legal protection. While campaigners have repeatedly called for change, this issue divides opinion and successive Governments have failed to act.
Couples can protect themselves by entering into a cohabitation agreement to give legal effect to their relationship, setting out what would happen in the event of the breakdown of the relationship (a bit like a pre-nup); they can draw up a will making provision for each other and any children of the relationship and undertake pension and tax planning. Many people assume these types of provision are automatic in the event of a breakdown of relationship or death but for cohabitees this is not the case and they have limited protection in law, even to the extent that a long-standing separated wife might be treated as next of kin so that the co-habitant could be excluded from making care or end of life decisions.
While it is it now time for change to amend the law to bring into the 21st century and provide protection for the changing faces of the family to ensure that they are given the benefit of legal protection in the event of a relationship breakdown or death of a partner, in the meantime, if you are living with a partner, you should seek legal advice as to the best way to achieve a similar level of protection, in the way that you organise your affairs.
The content of this article is for general information only. If you would like to advice relating to cohabiting or a cohabitation agreement, please contact one of our specialist family and matrimonial lawyers. Our family law solicitors are available in all four of our offices - Cambridge, Chelmsford, Ipswich or Norwich – and are consistently rated in the top bandings in the leading legal directories. Law covered as at February 2016.