Family Law and Unmarried Couples

A man and a woman living together in a stable sexual relationship are often referred to as ‘common law’ spouses. This term has not been recognised for over 200 years.

In reality, until very recently men and women who live together whether in homosexual or heterosexual relationships have not more legal status that friends who share a home for financial benefit.

The current legal position in relation to cohabitation rights differ in different situations:

Property Rights

If the property is in joint names the respective shares can be fixed, for example 30/70 or can be equal.

The problem arises if the property is in the sole name of one party in which care the other party would nee to rely on the complex common law doctrines of trust an / or estoppel in order to establish some kind of contribution to the property and hence an equitable interest which they could enforce on separation.

So called cohabitation agreements can help in establishing the intention of the parties at various stages in their relationship but it is not clear whether they are legally enforceable between the parties per se.

The court has greater powers if there are children as it can order transfer of capital or property under the Children Act 1989. However these transfers revert to the original owner once the children reach maturity.

Under the Trustees of Land and Administration of Estates Act there is more Power to be flexible with the transfer of property but it still relies on establishing some kind of interest using criteria broadly similar to the rules of common law as mentioned above.

Transfer of Tenancies.

Under the Family Law Act there is a limited power to transfer tenancies betweens cohabitants, particularly if there is domestic violence. By and large this only applies to heterosexual cohabitants and homosexual couples have difficulty in bringing themselves within the terms of the act.

Succession to a Tenancy.

Again the position is unclear and depends on the terms of the original tenancy. It is generally easier for heterosexual couples to establish a right than homosexual couples who are often termed outside the frame of reference.

Death and Inheritance.

As there is no duty to maintain between unmarried couples there is no automatic right to inherit. It may be possible to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 this can be established far more easily by heterosexual couples and still does not convey equal rights to a spouse and can often be clumsy and expensive to invoke. Furthermore a cohabitant cannot register a partner’s death or sign for a funeral.

Pensions

A cohabitant cannot rely on a partner’s contribution for the purpose of state benefit entitlement and whether or not they can claim a pensions after death will depend on the scheme. A cohabitant has no entitlement to a share of the pension on separation.

Taxation

Cohabitants are treated as individuals for taxation purposes.

Reform

There have been a number of studies done with regard to reform all of which recommend that any reform should apply equally to homosexual and heterosexual relationships. In addition they recommend the following;

• That cohabitants should be able to apply for capital provision on separation
• Cohabitants should have the right to apply for maintenance on separation
  
• Cohabitation contracts should be explicitly recognised as being enforceable.
  
• Cohabitants should be able to take advantage of pension earmarking and sharing provisions.
  
• Taxation law should be changed to recognise cohabitation.

Two bills have been presented to parliament which are broadly similar in recommendation and effect. Both would apply only to relationships, whether heterosexual or homosexual which have been registered using a formulated procedure. Once the relationship has been registered then certain enhanced rights would follow.

Some parts of the country have already taken on board the recommendations and the London Partnership Register will be officially launched in September 2004. The register will be open to both homosexual and heterosexual couple and, although registration will not confer legal status on the relationship it is hoped that it will accepted as evidence in any dispute or civil action.

Until such times as the law catches up the best that any cohabiting couple can do is to be aware of the pitfalls and do the best they can by way of legal documents, and private provision eg by way of wills etc to ensure that if anything goes wrong they are protected in the best way possible. Otherwise they might find themselves simply out on the street.