ONS figures show that cohabiting couples are the fastest growing family type in the UK, but the legislation has not moved with the times.
When Bhadrak Reddy (34) moved into a flat in Harrow five years ago with his then girlfriend Tanya Bhatt (32), making plans in case they broke up was the furthest thing from their minds. Bhadrak owned the property but the household bills were split evenly between the couple.
Their relationship soon deteriorated and they decided to separate. Tanya felt she was entitled to half the property. Bhadrak disagreed. Like many people, Tanya thought they had a ‘common law marriage’ with the same legal rights as married couples. This is not true. (Case study is fictional and for illustration purposes only).
The latest figures from the Office of National Statistics (ONS) shows that the divorce rate has fallen by 30% since 2003 – more people are choosing to live together before becoming married and this means many cohabiting couples find themselves in the same difficult situation as Bhadrak and Tanya.
On cohabitation breakdown there is no right to claim against a financial asset that is in the sole legal ownership of one party.
However it may be possible to establish a claim by an alternative doctrine known as equity (or what is considered fair and just). A claim may arise where one party has made a financial contribution or it can be established that there was a common intention to share assets but this can be difficult, time consuming and expensive. There is also no right to claim maintenance except for any children of the relationship.
Is there any way to ensure financial security?
The only way to guarantee some financial security or to protect assets in these cases is to have a cohabitation agreement in place from the outset. Parties should seek legal advice at an early stage.
Cohabitation agreements are similar to prenuptial agreements. They involve both parties taking independent legal advice, making financial disclosure and agreeing how their assets should be divided if there is a relationship breakdown. The agreement creates an enforceable contract between the parties.
It is also worth noting that in the event of a partner’s death, cohabitation alone does not provide the surviving partner with any automatic right to inherit part of the deceased’s estate if there is no Will.
The survivor could have a potential claim against the estate for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, but this will depend on the circumstances. It is therefore important to have an up-to-date Will referring to the cohabitee if you would like them to inherit from your estate. This reduces the risk of costly disputes between the survivor and other relatives after your death.
Article by Zharna Sutari