According to the latest figures released by the Office for National Statistics in 2018 for cohabitation, there was a 25.9% increase in the number of cohabiting couples in the ten year period since 2008. In numerical terms, this represents by far the largest increase in family type (i.e. married couples, cohabiting couples or lone parent families) throughout the last decade.

The reasons why people are electing to cohabit, rather than marry…

This could be down to one or more of a number of factors:

  • it could be for financial reasons;
  • it could be that certain individuals do not believe entirely in the institution of marriage, they may have been through a divorce themselves or have parents or friends who have done so;
  • or it could be that people do not appreciate the legal differences between marriage and cohabitation, and instead believe in the myth of ‘common-law marriage’.

The term ‘common-law marriage’ is widely, but incorrectly, used to suggest that cohabiting couples acquire certain legal rights akin to married couples.

In England and Wales there is no such thing as a ‘common-law marriage’, at least in the legal context. The term is typically used generically to describe unmarried couples who are living together.

However, whilst the laws between married and unmarried couples differ considerably, modern society has evolved, and continues to evolve, in such a way that suggests there is no slowing down of the cohabiting couple trend. The problem is that our laws are outdated by several decades and in desperate need of reform, to reflect the fact that more and more people are living their lives in this way, but without the legal protection that marriage would otherwise afford them.

On the breakdown of the relationship, unmarried couples are unable to pursue financial claims against each other in the family court, regardless of their contribution and the length of the relationship.

Their claims, if any, are typically limited to property, or for the benefit of any children of the relationship pending completion of education.

So, for example, if you take an unmarried couple who have no children, who haven’t entered into any form of trust or agreement which records their beneficial interests in property and/or regulates other financial interests within their relationship, their circumstances will be determined by strict trust and property laws. Unlike family laws, which apply to married couples, these laws give the courts little or no discretion to benefit any partner who is not stated to be the legal owner of a property. This happens regardless of whether they have been in a relationship for one year or fifty years; the laws remain the same.

If one partner holds the family home in their sole name, and hasn’t entered into any form of agreement that provides for the other to have a share in the property, it is extremely difficult for the non-owning partner to claim an interest in the property, and particularly if they did not make a financial contribution to the purchase. If the relationship ends after fifty years, the non-owning partner could conceivably exit the relationship with no share in the property which has been their home for decades.

All is not lost, however, as it is possible for cohabiting couples to come to an agreement between themselves, and to document any agreement to provide certainty and security moving forward.

This is happening more often now, whilst our laws await much needed reform.

If a cohabiting couple wish to declare their respective interests in a property, for example, they can execute a Declaration of Trust to perform this function. This document can either fix their respective shares in the property (which may be equal, or unequal to reflect unequal contributions to the purchase price), or leave them ‘floating’ if, for example, there are to be ongoing unequal contributions towards mortgage payments or renovation costs which the couple wish to have factored into their agreement.

Alternatively, or in addition, a cohabiting couple may enter into a Cohabitation Agreement. This would similarly include a declaration as to their respective beneficial interests in property, but would go even further to incorporate their respective rights and responsibilities towards all property, other financial arrangements and each other. In theory, a Cohabitation Agreement can cover an array of things, from conventional matters such as what contributions they will each make towards the mortgage payments and utilities, how the property should be dealt with if their relationship breaks down (should it be sold immediately, or should one partner have the opportunity to buy the other out at a fair market value, for example), and more unconventional matters such as who owns particular artwork and other household contents, and who may have the use of any classic motor car.

Like any good insurance policy, the hope is not that the holder will ever need to refer to a Declaration of Trust or Cohabitation Agreement in the future, but these documents enable them to live their life free from concern and wondering ‘what if’  should the relationship should break down. Their purpose is, quite simply, to help resolve all financial issues should things not work out as expected, enabling them to go their separate ways in a short space of time, with minimum acrimony and legal costs.

In an ideal world, rather like a pre-nuptial agreement, these documents should be placed in the top drawer and left to collect dust for years to come, never to be seen or considered again.

 

Now we’ve got a better understanding on the subject matter from a legal perspective, I wanted to get further insight on how to approach this sensitive issue within relationships. I had a chat with our relationship expert, Madeleine and this is her advice:

Madeleine, how would one go about introducing the idea of a cohabitation agreement to a partner?

Cohabitation usually happens as a gradual process as couples spend more and more time staying over with one another. The financial implications are seldom considered. There may or may not be a clear conversation about officially moving in and who pays for what, let alone a conversation about a cohabitation agreement. In fact, I doubt many people even know such a thing exists, even in theory. What to do?

Clearly you need to have a conversation, yet bringing it up can feel awkward. You can get around this by addressing the ‘elephant in the room’ and proceeding with a request for a conversation about the topic.

First address the awkwardness, a la

“I know this feels awkward…

State your feeling about it (rather than demand)

…but I think it’s important for our peace of mind to talk about our finances, contributions and ownership  etc…

Add the logic and reason behind (to curb any emotional insecurity)

“…if something were to happen to either of us, at least there is a document that states our mutual agreement.”

Finish with a request to talk about it

“would you be ok to talk about this?”

And when is the right time?

The best time to bring up the conversation is at a time neither of you have any immediate plans. If you can’t talk about the details right then and there, at least agree on a time when you will sit down and talk about it.

 

If you’re single and looking for love or in a relationship and in need of a little expert advice, get in touch with Maclynn today and book in one of our renowned coaching sessions. Madeleine is on hand for one-on-one sessions, to offer expert advice in order to secure a healthy, happy long-term partnership.