Megan Wroe

The reforms aim to:

• Reflect a modern society.
• Make the separation process less financially difficult for cohabiting couples.
• Provide better financial protection to domestic abuse survivors, whether they are married or not.
• Grant automatic inheritance rights to unmarried couples when a partner dies.
• Make pre-nuptial and post-nuptial agreements legally binding.

The Government says that the proposals will offer ‘a distinct and different set of rights from married couples’ and will not make cohabitation legally identical to marriage or civil partnership.  However, they will address some protections available to cohabiting couples and aim to meet their basic financial needs.

Cohabiting couples do not currently have a claim on their partner’s assets when they separate, unless they have an interest in them or there is a will that specifies that the partner should inherit – although it is not uncommon that this will would be changed upon separation which would defeat any claim.

There is no automatic right to stay in the family home if it is owned solely by one partner. Without an express agreement or evidence that the non-owning partner has made a financial contribution, such as mortgage payments or significant home improvements, there is no specific claim, and a court application would be needed.

Pensions can constitute a significant portion of assets. However, under the current law cohabitees have no claims on their partner’s pension if the relationship breaks down.

Many cohabiting couples believe that they will automatically inherit assets if their partner dies.  This will not happen unless there is a will that names the cohabitees as beneficiaries. If no will exists, the estate will be distributed according to intestacy laws.  Any children of the relationship may inherit under these rules, but partners do not.

Whilst generally speaking, there will be child maintenance payable between former cohabitees upon separation, there is no right to maintenance beyond this for the lower-earning party, even if they had stayed at home to look after the children and home.

These are some of the issues the Government’s proposals seek to address. There will also be consultation on whether domestic abuse, including controlling or coercive abuse and economic control, should be given greater weight when assessing finances for married couples, those in civil partnerships and cohabitants.

Megan Wroe, head of Graysons’ family department, says:

“Contemporary relationships are not accommodated in the current law.  Not all couples feel that marriage or civil partnership is the right route for them, and modernisation of family law to address this is overdue and welcome.

“Separation for unmarried couples can cause extreme difficulty, and uncertainty and there is a risk of financial hardship.  Sometimes, the financially weaker partner is left with few options even after a substantial relationship.

“Hopefully, the Government’s planned changes will mean that qualifying separating partners will be able to get the support they need so that they can get on with their lives. It is also encouraging to see that domestic abuse may finally be given more weight when resolving finances.” 

The 10-week consultation launched on June 5 and closed on August 14. Further information can be found here.

It is important to note that these proposals are currently in consultation, and until there is new legislation, cohabiting couples do not have these proposed protections.  We will provide further updates when the consultation is complete.  In the meantime, cohabiting couples can look at protecting themselves now by drafting a will, making a cohabitation agreement or setting up a declaration of trust, which is a document that states what financial contribution each party has made to a property and that they will get that share back if they separate.

For further advice, contact our family department or our wills and probate department or visit our webpages.

Author: Megan Wroe, head of the family department.