What will it mean for couples who live together but have decided not to, or haven’t got around to, tying the knot? Forearmed is forewarned, and the bill, when enacted, will have an immediate impact on those already ‘living together’.

To whom will this apply? The bill says one of four conditions must be satisfied:

  1. Two people are treated as the parents of the same child;
  2. There is a joint residence order (aka old style custody order but now more currently, since the bill was drafted, a Child Arrangements Order) in force for a child;
  3. Two people are the natural parents of a child but may have split up after the woman became pregnant, but before the child was born;
  4. The couple lived together for three years or more.

This latter provision raises the obvious omission in the bill of the definition of ‘living together’ – what does that mean? In common-law parlance one anticipates the existence of a sexual nature – but what of the long-term platonic and still financially interdependent relationship? The bill doesn’t require the existence of children to validate the living arrangement. We shall have to see if this is remedied in the further drafts.

A former cohabitant can apply for a whole range of financial settlement orders, providing he or she does so within two years of splitting up – a lump sum, a transfer or sale of the house and even a share of the other’s pension. Much like the divorce jurisdiction the court has a wide discretion based on factors such as the existence of children, the parties’ financial resources and significantly bad behaviour. Before we get to that stage though, the court has to be satisfied that one party has secured some benefit or the other an economic disadvantage by virtue of living together.

So, what if you just drifted into that 15 year relationship or actually decided not to get married for a reason? What if you didn’t intend to share your resources with your partner? Fear not, there is an opt-out provision – which must be in writing and after legal advice. How many will ever find out about this opt out? How many people will be blissfully unaware of the need to take this pro-active step? Not many I suggest. Cohabitation agreements have been possible for years but few decide to take up on them.

For the first time, unmarried cohabitants can also enjoy a right of inheritance from one another in intestacy situations – what so many people have always called “common law man and wife” rights. People should take care not to rely on this however – if one of the parties is still married or in a civil partnership with a previous partner, then on intestacy that previous partner will have a right to inherit, which supersedes that of the later cohabitant. The advice, as always, must be make a will.

Whatever the outcome of this bill, it’s still a good idea to agree with your partner before you move in together, what will happen to your own resources during and after the relationship ends. If the bill gets through, you may end up handing over more than you ever intended.

For more information

For more information about any of the issues highlighted in this article please contact Elizabeth Wyatt

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