Resolution Awareness Week and Cohabitation Reform

Resolution Awareness Week and Cohabitation Reform

Resolution’s ‘Awareness Week’ is taking place between 27^th November and 1^st December 2023. Resolution is an organisation of family justice professionals who work with families and individuals to resolve family issues taking a constructive and non-confrontational approach. All Machins Family Lawyers are committed to the Resolution Code of Conduct.

This year, Resolution is using Awareness Week to launch their Vision for Family Justice, focusing on the need for cohabitation reform.

Why is there a need for cohabitation reform?

Cohabiting couples make up the fastest growing family type, but the law doesn’t recognise these couples in the same way as those who are married or in a civil partnership. Despite this, nearly half (46%) of adults in England and Wales mistakenly think that couples acquire ‘common law’ rights after living together for a certain amount of time or having children together. It is a myth that there is such thing as a ‘common law partnership’ or ‘common law marriage’.

The lack of rights for those cohabiting and misconceptions mean millions of people are at significant financial risk if their relationship ends or their partner passes away, making them particularly vulnerable if they have not taken potential action to protect themselves.

Resolution aims to raise awareness regarding the lack of protection for cohabiting couples and is campaigning for the government to increase legal protections for those cohabiting.

Protections available to cohabiting couples

During the relationship:

• Upon purchasing a property, parties can enter into a Declaration of Trust and purchase the property in specific percentages as Tenants in Common rather than Joint Tenants (where property passes automatically by survivorship). This should be considered when buying a property together and one party has provided the deposit.
• Those cohabiting or intending to cohabit can enter into a cohabitation agreement. This is a legal contract between the cohabitees which can cover all aspects of cohabitation to include assets, income, liabilities, occupation of property.  The agreement can be totally unique to the parties but must comply with legal formalities in order to be binding. This may provide protection when one party moves into a property owned in the sole name of the other or one party intends to inject capital or to undertake renovations on the property which is owned by the other.
• Parties may wish to make a new Will and take out life insurance if they seek for their partner to be able to continue living in the property upon their death. A private client solicitor can assist in drafting a Will and in addition, advice should be sought from an Independent Financial Adviser with regards to obtaining a Life Insurance Policy.

Potential claims available upon separation

• Child Maintenance

This may be due from one biological parent to the other. The amount shall depend upon the payer’s income and the child arrangements.

• Schedule 1 Children Act

This legislation provides greater protection to assist in supporting the children of the family to include top-up child maintenance (for the very wealthy – earning over £156,000 gross per annum) but more helpfully to provide some protection for the occupation of the home and/or lump sum payments while the children remain dependent.  The emphasis here being that it is during the children’s minority and will therefore usually revert back to the owner upon the children reaching 18 years or finishing full time education.

• Trusts of Land and Appointment of Trustees Act 1996

The starting point is that ownership of the home follows the legal title on the deeds, however the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) legislation can provide some protection for cohabitees with or without children if there has been an intention for that party to have an interest in the property verbally or in writing or this can be inferred thorough conduct e.g. a financial contribution to a property, or a party acting to their detriment in reliance on a promise made that they would have some rights to the property.

This is an extremely complicated area of the law with many cases turning on recollections of who said what, to whom and when.  This can lead to a high costs, stress, uncertainty and unfairness.  It is far better to spend a much smaller sum on a cohabitation agreement at the outset to prevent that risk.

• Inheritance (Provision for Family & Dependants) Act 1975

Without a will a dependant partner with or without children will have no automatic rights on the death of their partner.  If they are not included in the will they could be left vulnerable upon death.  There are some claims that can be made to contest a will if you can prove you were a dependent of the deceased and you had lived together for more than two years before the death. This area of law is largely dealt with by our Private Client team.

This is another complicated and emotional type of application at a time when parties are grieving.  This can be prevented by ensuring this has been covered in a will and/or cohabitation agreement.

Please contact Tom Palmer or another member of the Machins Family Team if you would like to discuss any of the matters discussed in this article, or any other aspect of family law. Tom can be contacted at [email protected].