Birketts, a UK Top 50 Law firm, has called for urgent reform to cohabitation laws in England and Wales.
Currently, one in five couples are living together in a cohabiting relationship in England and Wales – the equivalent to 3.6 million couples – making cohabiting couples the fastest growing type of family.
Family and Property Litigation lawyers at Birketts claim that the law is severely deficient in providing adequate protection to those persons who do not have the state ‘legitimise’ their relationship by acquiring marital or civil partnership status.
A lack of awareness is compounding the issue further. Data from the Second Report of Session 2022-23 Women and Equalities Committee Report shows that cohabitation is often not an informed decision, with 46% of people in England and Wales believing that there are automatic rights akin to marriage or a civil partnership on separation. 55% of people in England and Wales wrongly believe there to be extensive financial remedies akin to marriage if the household has minor children.
Francesca Skakel, Solicitor in Birketts’ Family Team, said: “The only relationships that currently benefit from the full legislative powers to grant financial remedy on separation are those who are married or have entered into a civil partnership. This is an increasingly smaller proportion of the population.
“What we are seeing is a significant lack of awareness of this risk. People are not ‘opting out’ of the protections of marriage or civil partnership but falling unaware into a gap of legislation. Rights are limited to complex property issues and the narrow scope of financial remedy orders for the benefit of children.
“It’s hard to see that the current law is fit for purpose when it is so at odds with society’s expectations about the level of financial protection for those in enduring relationships.
The law cannot be so out of touch with societal change and belief and must catch up.”
Stephanie Butler, Associate Solicitor in Birketts’ Property Litigation Team, said: “The law of TOLATA (Trusts of Land and Appointment of Trustees Act 1996) cares little about fairness. Where a cohabiting couple is unmarried, and only one of them is on the title deeds of their shared home (which is often the case), the non-legal owner has no right to a share in the sale proceeds unless the existence of a formal or informal trust can be proved.
“Very often, the non-legal owner will not be able to prove the existence of a trust, and they will be entitled to nothing from the sale proceeds. The law should be altered, so that unmarried cohabiting couples have similar rights to married couples.”
If a cohabitee does not want to enter a formal marriage/civil partnership, Birketts recommends that they look at agreeing terms for a cohabitation or separation agreement, which can partly protect their financial position. These are contractually binding documents that have all the remedies of contract law available if breached and can be as extensive as the cohabitees decide or wish for them to be.
Similarly, unmarried couples may wish to consider entering into a declaration of trust that records their respective shares in the equity of the property. This is often done alongside a cohabitation agreement, which can deal with the broader financial and practical aspects to the relationship.
Francesca Skakel adds: “While many fear these conversations might be awkward, it is much better to have them now rather than when it is too late.”
For more information on Birketts Family Team, visit https://www.birketts.co.uk/service/family-services-individual/. For more information on Birketts’ Property Litigation Team, visit https://www.birketts.co.uk/service/property-disputes-services-individual/.