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Better property legal rights for cohabiting couples may come soon

An unmarried person living with a partner could soon get better legal rights. A bill has just been introduced in Parliament which would bring property law relating to cohabiting couples more in line with that which currently applies to married couples and those in a civil partnership.

At present English law does not recognise so-called common law marriages although many people believe that it does. If two people live together as a couple the law at present does not give either of them the same property rights as they would have had if they were married or in a civil partnership.  

Problems when a shared home is owned by only one cohabitant

A common situation is when a person moves in with someone who already owns a home. If the home is not transferred into the couple’s joint names the person whose name is not on the title has no legal rights to the property.  

This can bring great hardship when the relationship breaks down and the couple split up or if the person owning the property dies or becomes incapable of looking after themselves.  

Cohabitants treated unjustly by existing law

Some years ago the Law Commission (a statutory independent body created to keep the law under review and to recommend reform) looked at how cohabitants were treated by the law. Its report concluded that the existing law was “… uncertain and expensive to apply” and “… often gives rise to results that are unjust. ”

The Commission proposed reforming the law to give some financial rights for unmarried couples who had lived together for a particular period or had a child. However successive governments have failed to bring in legislation to give effect to the proposed reforms.  

Common law marriages recognised elsewhere – why not in England?

Common law marriages are recognised in many other countries around the world. It seems ridiculous that while the courts in Scotland have powers to make orders for financial provision when cohabitants separate the same does not apply in England or Wales.

Lord Marks, a Liberal Democrat, now seeks to remedy this situation. He has introduced a private members bill in the House of Lords which would give effect to the recommendations of the Law Commission.  

Proposed law will put cohabitants on equal footing with married couples

The bill if passed will apply to all couples who have lived together for a period of two years or more, or who have children (with certain exceptions. ) Cohabitees would gain new rights, including the right to apply for a financial settlement within two years of the relationship ending, providing the person applying made a significant contribution.

Courts would be able to order similar settlements to those paid in divorce cases, such as lump sum payments, pension sharing and ordering the sale of a property. The courts would also have powers to block anticipated property transfers intended to defeat a claim by one cohabitant.

The bill also includes provisions for financial and property arrangements applying on the death of one cohabitant. Various existing legislation is to be amended to give cohabitants similar rights to those now benefiting surviving spouses and civil partners. For instance the Intestates’ Estates Act 1952 would be amended to give a surviving cohabitant rights to the home and to a share in the estate of a deceased cohabitant who died without leaving a will.

The bill contains detailed provisions as to who will be defined as a cohabiting couple and the time when an application can be made. Opt-out agreements will be permitted if properly agreed by both partners and provided that each receives independent legal advice.

Support the bill

All in all the bill is a very thorough piece of legislative drafting, and if passed it will provide welcome relief to the increasing number of couples who now choose to live together. In particular it will provide a proper legislative framework for disputes relating to the ownership of a home in which a couple has resided when it is only registered in the name of one of them.

It is to be hoped that the government and members of parliament generally will see fit to support this bill. At present the bill has just been given a first reading in the House of Lords, so it still has a long way to go before it becomes law.

Private members bills generally have little chance of success unless supported by government but if a bill gets substantial cross-party support it stands a better chance of passing into law. So if you think that cohabitants should have better legal rights you should tell your MP to support this bill.  

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