According to ONS statistics released on 8 July 2015, around 1 in 8 adults in England and Wales are living as a couple but are not married or in a civil partnership, and cohabiting is most common in the 30 to 34 age group.
One can speculate about the reasons for this. Clearly attitudes towards marriage have changed, but for people in their 30s it may also be a factor that the economic climate has meant they perceive marriage – or rather a wedding – to be unaffordable.
However, for many this could be a false economy and I suspect that most cohabitants, if they realised how badly off they might be in the future, would tie the knot without hesitation.
But that is the problem. There is a persisting misconception amoungst the general public that there is such a thing as a “common law marriage”. This is simply not the case. In fact, currently cohabitants have no legal status if they separate or if one of them dies, which can result in serious injustice particularly after a long relationship.
What if my partner dies?
If you are not married and your partner dies without a Will, their assets will go to their next of kin and not you. This means that, unless you own your property jointly as joint tenants, you could end up having to move out of your home. It is imperative therefore that all unmarried couples make Wills.
As regards rights under your partner’s pension, unless your partner has specifically asked their pension company to pay benefits to you on their death, you are unlikely to be entitled to any of their pension. Some pension companies will not allow benefits to be paid to unmarried partners even where a specific nomination has been made unless you can prove financial dependency or inter-dependency.
If you are not married, therefore, you must ensure that you each nominate the other to receive benefits under your pension in the event of your death. I would also advise that you pay comparable amounts into a pension each, rather than assuming that you can rely on the prospect of receiving benefits under the other’s pension in the event of their death. I find it very worrying that for many of the unmarried couples I encounter, usually those in a long relationship and with children, one of them will have a large pension and the other none at all. Often they will have made a conscious decision to contribute to the one pension between them, thinking that they will both benefit in their retirement which, if the pension-holder dies, may simply not happen.
What if we split up?
It is in the event of relationship breakdown that the different treatment of unmarried versus married couples becomes most glaring. Whereas, as an unmarried couple, you can take positive steps to mitigate the risk of unequal treatment on death, there is simply no way to ensure you are on an equal footing with a married couple if you split up.
Many unmarried couples think that if they were to split up, they could agree to divide their assets in the same way that they could on divorce.
This is true in the case of all assets except pensions. For example, although as a separated cohabitant you have no right to ask the court for spousal maintenance, you may of course arrange maintenance payments between you. Equally, although you have no right to ask the court for a share of your partner’s assets, you can divide these between you by agreement. It is the same when it comes to dividing the equity in any property; if your partner owns your home in their sole name, unless you can show you have contributed towards the mortgage or improvements, you may not be entitled to any of the equity, but nevertheless you may choose to divide it as you see fit.
However, in the case of pensions, whereas you may share pensions on divorce, a pension sharing order is simply not available for unmarried couples even if you both want one.
Damage limitation
There is no way around it; the best way of protecting yourselves from an unwelcome outcome if you should suffer the death of the other or relationship breakdown is …. to get married.
However, if for whatever reason marriage simply isn’t for you I recommend that you get legal advice about entering into a Cohabitation Agreement (sometimes referred to as a Living Together Agreement) which, although not legally binding, will minimise the risk of future dispute.
It is also essential that you have a Will and that you review this regularly.
And, if you jointly own property, or are looking to buy a property with your partner, it is vital that you get legal advice as to how you are going to own it and that this is recorded in a Declaration of Trust.
What if it is too late – and you have already separated?
The law to be applied in cohabitation disputes is complex and due for reform and consequently litigation in this area can be very costly. It is therefore essential to obtain specialist legal advice from a family lawyer at the earliest opportunity.
Sarah Jackson is a member of the Law Society’s Advanced Family Law panel with a specialism in Cohabitation law.
Image by Elliot Brown under a Creative Commons licence