Cohabitees deserve rights on separation

Linda Lamb

Linda Lamb

There has been a considerable amount of cover in the press about the proposed changes to the divorce process to remove fault; it is hoped that this will be introduced soon.

There have also been changes to the process for divorce, making it simpler to apply for divorce online.

This is all despite the reduction in couples choosing to marry, and instead opting to cohabit.

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The Office for National Statistics showed the number of cohabiting couples is up 25.8 per cent over the decade.

Many other countries, including our neighbour Scotland, have already introduced legal rights for separating cohabitees.

Without a legal framework in England to protect cohabiting couples, it will be interesting to see if with increased awareness, those who did not want to marry will instead enter a civil partnership, which will provide them with automatic entitlements on separation.

Resolution, formerly the solicitor’s family law association, has recently launched a campaign for the introduction of cohabitee legal rights on separation.

Resolution is trying to get legislation introduced which will provide legal rights to pensions, personal support and division of assets if the couple decide to separate.

As a family lawyer, I see on a regular basis the injustice former cohabitees experience, particularly when they separate after many years together and their children are now adults.

I see the look of surprise from clients when told that there is no such thing as ‘common law husband and wife’.

You are either married or in a civil partnership and have automatic financial rights on separation or you are not; there is no automatic entitlement to a share of property unless in joint names; pensions and any other assets or investments are in the sole name of the former partner.

The starkest example is where the couple have been together for many years and the children have now left home.

One partner may not have worked, instead focusing on the care of the children and so assisting the other to generate a good income which was then used to purchase investments and pensions to provide for a comfortable retirement.

The house they live in is also in that partner’s sole name.

If lucky, there may have been a promise that the other would receive a share of the property.

If not, it is difficult to prove and one partner could walk away with everything, leaving the other with no home, pension, investments and income.

The legal processes for obtaining the limited interest in the property is civil proceedings.

Financial advisers, like all professionals working with couples should be aware of the financial issues that could arise if a cohabiting couple separate leaving one considerably worse off financially.

There could be financial advice to make sure both have assets in their own name.