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Providing for Cohabitants on Relationship Breakdown - Should the law move with the times?

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In October 2013, the Office for National Statistics produced a bulletin showing the number of couples that now cohabit within the United Kingdom. The statistics showed that in 2013, there were 18.2 million families within the UK, and 2.9 million of those families were made up of opposite sex cohabiting couples.

A common question is, are cohabiting couples aware of their legal rights? In as recently as 2008, a public survey that was published revealed that 51% of the people surveyed thought that cohabiting couples had the same rights on relationship breakdown as married couples. This, however, is far from the truth.

Currently, unless the parties have a valid Cohabitation Agreement setting out what is to happen on relationship breakdown, the only financial redress for a cohabitant is to make an application to the Court for an Order for the property to be sold and/or a declaration of the ownership of the property. The position is easier when the property is jointly owned by the parties as they both have a legal entitlement to the property. However, where the property was purchased in the sole name of one of the parties, the non-owning cohabitant must establish that they have a beneficial interest in the property, if they are to acquire a share of it. This would involve, for example, evidence that they contributed to the purchase price or that the parties intended to own the property together.

The question of whether cohabiting couples should be given the same rights as married couples on relationship breakdown is an issue that has been at the forefront of public attention for quite a few years. Given the significant increase in couples choosing not to marry, should the law move with the times? Are cohabitants adequately protected by the law?

We now live in a society where cohabitation is more popular than ever and the social stigma of living together whilst being unmarried is diminishing. On the one hand, it can be argued that the law should respond to this and afford more protection to cohabiting couples. However, on the other hand, it can be argued that many couples make the conscious decision not to have a formal relationship, in order to escape the legal consequences of doing so.

Regardless of the view that is taken, it is clear that there needs to be greater public knowledge in relation to this area, given that many people find themselves splitting up from a long term relationship with the misconception that the ‘common law marriage’ still exists. In any event, it does not seem like the law will be changing any time soon, especially since the most recent Cohabitation Rights Bill seems to be heading the same way as the 2008 Cohabitation Bill, that is, nowhere.