The Cohabitation Question

It is believed that one in eight couples in the UK live together but are not married or in a civil partnership. This is called ‘cohabitation’; an increasingly popular relationship choice, and one that undoubtedly suits the six million or so people who are doing it.

There are other types of cohabitation set-ups that don’t involve couples: friends who decide to pool their budgets and buy a house together, for example, will be cohabitees. These arrangements can all work brilliantly, but if you are cohabiting it’s very important that you understand and protect your legal position.

In a family law context, cohabitees are vulnerable. The idea of living together as ‘common law husband and wife’ is hugely misleading; the truth is that cohabitation (over however long a period) does not convey the same rights and protections as marriage or civil partnership.

I see the fallout of this on a regular basis when one half of a couple comes to me for advice after a separation. They expect to be entitled to half of the house and to ongoing financial support from their ex. Some assume that they will inherit from their ex–partner’s estate when that person dies. I have to explain that couples who have lived together for many years – to all intents and purposes as ‘husband and wife’, ‘husband and husband’, or ‘wife and wife’ – very often have to move on from their relationship on terms that do not reflect the reliance that they had on one another, their personal investment in family life, or the future needs of the more dependent partner.

Some cohabiting couples are sufficiently legally aware to have a contingency plan that aims to prevent or moderate potential future disagreements over who is entitled to what. A cohabitation agreement is certainly among the least romantic topics of conversation that a couple might have, but there’s no doubting its usefulness. It’s a formal, legal document that sets out what should happen to a non-married couple’s house, finances, and children (and any other important things) in the event that they split up. It’s up to you how you design the arrangement, but do get a lawyer to draft the agreement; it’s vital that you cover everything and put in place the best possible terms for you. It’s of course also vital that the agreement is prepared and formalised so as to be enforceable, should it ever need to be relied upon.

And that is the point. You might never have to call on your cohabitation agreement, but it’s there if you do. That peace of mind counts for a lot, particularly when you want to ensure that your children are shielded as much as possible from the upheaval and financial difficulties that their parents’ separation might cause.

This idea of protecting and putting children first is never far from a family lawyer’s mind, nor is it far from the headlines. You may have read the recent story of the mother and widow, Siobhan McLaughlin, who had been denied bereavement benefits because she and her partner, John Adams, had not married before his death. These included a widowed parent’s allowance of £118 per week which would otherwise have been payable until the couple’s youngest child had finished school.

The case went to the Supreme Court where it was decided that the family should get the allowance. Given Mr Adams had paid National Insurance his whole working life, this was the fairest outcome. It is now for the Government to decide whether or not the law should be changed so that others in Ms McLaughlin’s position (and, perhaps more significantly, in the position of her children) should now get the same benefits.

From a human rights perspective, is it fair that children of married parents fare better financially on the death of a parent than children of unmarried parents? As someone who has worked in family law for more than 12 years, I am hugely in favour of children of unmarried parents benefiting in the same ways as those whose parents married.

We shall have to wait and see what comes of this. In the meantime, the case of Siobhan McLaughlin and her children serves as a stark reminder that, under current law, not all couples and not all families are equal.