By Liz Bell, solicitor

Cohabiting couple families remain the fastest growing relationship in the UK, but many mistakenly believe that they have the same legal rights as married couples in critical areas such as savings, income, pensions or business interests.

In fact, cohabiting couples are the second largest family type after married or civil partner couples, but the law does not offer them any protection should their relationship turn sour and separate becomes inevitable.

Become are some of the questions we are asked by cohabitees

My partner and I are thinking of living together – is there anything we can do to protect ourselves should we split up?    

A cohabitation or ‘living together’ agreement, to record who owns what at the outset, provides some security to unmarried partners. It encourages people to think clearly about what they want to happen not only while they live together, but also if their relationship ends, setting out who owns what – and in what proportion.

Cohabitation agreements set out how you will divide property (as well as paying off debts), personal belongings, savings, pensions and other assets should you split up – along with how your children will be supported, plus how to deal with bank accounts, debts and joint purchases such as a car. They can also cover more day-to-day matters including pets.

It is important that each party seeks independent legal advice and discloses all financial information in the lead up to signing the agreement, which should be reviewed regularly.

Can a cohabitation agreement be set up while we’re living together?

Yes. It can be drafted either prior to or during your time together. It can also be amended, as long as both parties agree that the original agreement should be changed and how.

I’ve paid into our mortgage for many years, but the property is in my partner’s name. What happens if we go our separate ways?  

Cohabitation gives no automatic rights to the home you share if the property is solely in your partner’s name, no matter how long you have lived there. However, if you can show that you have contributed to it and there was ‘an intention to share’, you may be able to make a claim. This is a very complex process, though – and legal advice is essential.

Relating to the above, what happens if my partner dies?

If they die either without having made a Will, or having made one, without making reasonable provision for you, as the surviving partner you would have a potential claim as a cohabitee – providing you have lived together for at least 2 years ending with date of death. Under current law, if you cannot satisfy the 2 year requirement, you may be able to make a claim on part of your deceased partner’s estate as a dependent. It is important to bear in mind that a dependent’s claim ranks lower in priority than the cohabitee’s claim.

If your partner dies without making a will, the law says that a property in their sole name – or their share of it – must go to their next of kin. First among these are any spouse, and then any children, followed by the next closest group of living relatives. You will not be a surviving spouse for pension purposes as you were not married. You might be able to make a claim against your deceased partner’s estate if they have not made reasonable provision for you, and subject to other conditions imposed by law. To avoid this potential issue, you and your partner should make wills and/or consider transferring any property into joint names.

For more information about any aspect of cohabitation or family law, call Jones Myers at our Leeds office on 0113 246 0055, our Harrogate office on 01423 276104, visit jm2023.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce

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Steadman divorced film director Mike Leigh, with whom she has two sons, after a 28-year marriage and expressed the hope that her new role would encourage unhappy couples to ‘appreciate each other’ rather than walking away.

The plotline explores the emotional issues that lead a retired woman, played by Steadman, to leave her husband and children. As figures from the Office of National Statistics show, the ‘silver separators’ are no longer just the stuff of drama, but a growing group.

If art is to mirror life with some accuracy it will be interesting to see how the writers tackle some of the critical financial issues affecting older couples if their relationship falls apart. These include:

Who held the purse strings?

It is often the case that one partner has taken the lead on managing the couple’s financial affairs and the other party has been happy for them to do so. If they separate it is important that both parties know how much they own and owe.

It is often the case that despite not making major financial decisions during the marriage, after divorce, in addition to dealing with the emotional side of break up, one party may need support and advice to make important decisions about their economic future for the first time.

Downsizing

Often, by retirement a couple will have repaid their mortgage but dividing the equity equally will mean that both parties need to adjust to the idea of each living in a smaller property.

Pension entitlement

During the working years one party in the marriage may have built up a sizeable pension, whilst the other stayed at home to bring up children. The wife – and it usually is the wife -can make a claim to a share of that pension which is income they could rely on if they are facing later life as a single person.

Making a new will

If one, or both partners, end up re-marrying or cohabiting, there is a need to ensure that the family assets are properly protected and in any split it is sensible to re-visit your will. Any will made prior to a divorce becomes invalid in respect of any gift to the spouse, once the divorce is granted.

Making later life divorce the stuff of drama suggests that conflict will lead the action. As champions of collaborative law we know that, by offering couples a less adversarial and often cheaper way forward, we can help avoid potentially costly courtroom battles.

With our help, most people are able to work through the divorce process with minimal emotional and financial stress. Taking the drama out of a life-changing break up is what we do best.

Putting the drama in is best left to the writers and actors of works of fiction like Love and Marriage.

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