Cohabiting couples are the fastest-growing family type in the UK, with 3.6 million couples living together outside of marriage or civil partnership in 2023. Despite this societal shift, the law in England and Wales has yet to catch up, leaving cohabiting couples vulnerable and without many of the protections afforded to married couples. Could new laws finally change this?
Let’s explore the current legal position, the proposed changes, and what these mean for cohabiting couples.
The Current Legal Position
In England and Wales, cohabiting couples do not have the same legal rights as married couples or civil partners. This gap in legal protection often leads to financial and emotional hardship when relationships end. Key areas of concern include:
- Property Rights: Ownership is determined by property law. If the property is in one partner’s name, the other partner has no automatic right to it, even if they’ve contributed to the mortgage or renovations.
- Financial Claims: Unlike married couples, cohabitants cannot claim spousal maintenance or share pension assets.
- Inheritance: If one partner dies without a will, the surviving partner has no automatic entitlement to their estate.
- Parental Responsibility: Cohabiting fathers only gain parental responsibility if they’re listed on the child’s birth certificate or enter into a formal agreement.
Read more about current cohabitation laws and why the myth of “common-law marriage” is misleading in an earlier article we posted.
Cohabitees and ToLATA: Legal Disputes Over Property Ownership
Financial rights for cohabiting couples differ significantly from those of married couples, particularly in property disputes. Unlike financial remedy claims in divorce, which fall under the Matrimonial Causes Act 1973, cohabiting couples must resolve property disputes under the Trusts of Land and Appointment of Trustees Act (ToLATA) 1996.
Differences Between Civil and Family Procedure
A critical distinction between ToLATA claims and financial remedy proceedings is the governing legal framework. While family proceedings under the Matrimonial Causes Act follow the Family Procedure Rules (FPR), ToLATA claims are governed by the Civil Procedure Rules (CPR). Key differences include:
- Burden of Proof: In family cases, the judge has a quasi-inquisitorial role and can make discretionary decisions based on fairness. In ToLATA cases, the burden of proof lies on the claimant, and the court’s role is to declare legal ownership rather than determine a fair division.
- Procedural Differences: Financial remedy proceedings involve extensive financial disclosure through Form E, whereas ToLATA claims follow CPR disclosure rules, with parties required to disclose only relevant documents.
- Costs Implications / offers of settlement: In financial remedy cases, each party typically bears their own costs. In contrast, in ToLATA proceedings, the losing party usually pays the winner’s costs, especially if a Part 36 offer has been made / accepted. Part 36 offers do not occur in family proceedings.
Ways Cohabitants Can Own Property:
- Joint Tenants: Both parties have equal rights, and ownership automatically transfers to the surviving partner upon death. (survivorship principle).
- Tenants in Common: Each party holds a distinct share in the property and can transfer or dispose of their interest separately.
- Sole Ownership: One party legally owns the property, often leading to disputes when the relationship breaks down.
Applications Under ToLATA
If a dispute arises, cohabitants can apply to the court under ToLATA to:
- Order the sale of the property (s15(1) ToLATA) by assessing the trust’s intention, purpose, minor welfare, and creditors’ interests.
- Determine who is entitled to occupy the property.
- Clarify the extent and nature of property ownership.
For cohabitees with children, claims can also be made under Schedule 1 of the Children Act 1989, allowing the court to order financial provisions for a child’s benefit, such as property settlements.
Proposed Reforms: What Could Change?
Efforts to reform cohabitation laws have been ongoing for years. The Cohabitation Rights Bill, introduced in the House of Lords in 2019, aims to address the most glaring gaps in legal protection. Although its progress has been slow, recent political developments suggest renewed focus on cohabitation reform.
Key Provisions of the Cohabitation Rights Bill
If passed, the bill would:
- Enable Financial Settlements: Cohabitants who have lived together for at least three years, or have a child together, could apply for a financial settlement to address economic disadvantage arising from the relationship.
- Inheritance Rights: Provide cohabiting couples with the right to inherit under intestacy rules.
- Child Maintenance: Strengthen provisions for child maintenance and property transfer orders for the benefit of children.
These changes could provide a safety net for millions of couples, ensuring fairness in separation and protecting children’s welfare. For details on the bill’s progress, visit Parliament’s website.
Looking Ahead
While reform is overdue, the growing political and social focus on cohabitation rights offers hope for the future. Until then, it’s essential for cohabiting couples to plan ahead and take steps to protect their financial and legal interests.
Stay informed about cohabitation reform by following updates from Trust Family Law. With the right knowledge and preparation, you can ensure that your rights are protected, whatever the future holds.