As more couples choose to live together (one in four people live with someone to whom they are not legally married) the arrangement of personal affairs needs to be considered.  As the law stands, no matter how long  a couple live together, they do not acquire legal rights unless they are married. 

What is a cohabitation agreement and why do I need one? In the eyes of the law, cohabiting couples are in a very different position to couples who are married.  When married couples divorce and even when they separate, they have rights which can be enforced by law. Except in limited circumstances, this is not the case for cohabiting couples.

Pension.  Similarly, pension schemes are not obliged to recognise or make provision for unmarried partners.  Providers of private pensions can do so, but public service pensions take no account of cohabiting couples. 

There are many myths surrounding the law in this area.  An example is the suggestion that after parties have lived together for a number of years – say 2,5 or even 10 – then they acquire legal rights as between the two of them.  There is no such rule in English Law.  No matter how long you live together, you do not acquire any rights over each others property when you separate.  The only obligation which arises is under the Inheritance Act giving one party a possible right to claim against the estate of the other.  There is no “common law marriage” in English law. 

The legal profession and the Courts have tried to get around this problem by invoking the Law of Trusts and other means of achieving fairness.  Implied or constructive trusts can be used as a means of justifying one party’s claims against another.  However, the intention of the parties is paramount.  The collection and presentation of evidence – often after the event – as an indication of the intention to create a trust is crucial to the success or failure of the case.  The Government is beginning to address the problems in this area.  Cohabitation agreements can provide useful evidence of the parties’ living arrangements.  This can help the parties in the relationship make their own arrangements and, if the relationship ends, can save them considerable time and money in separating their property and financial affairs. 

Cohabitation Agreement

One way to make such provisions is through the mechanism of Cohabitation Agreements.  However, the question of whether a Cohabitation Agreement is enforceable in the English Court is by no means certain.  The general consensus within the legal profession is that such Agreements must be viewed with caution. 

The reason for this is that Cohabitation Agreements are likely to be attacked on various grounds.  For example, it could be successfully argued that the parties to such an agreement did not intend to create a legal relationship.  In fact, there is a presumption in law that no such intention exists in contracts involving domestic or family matters.  However, such technical arguments can be overcome quite easily if the parties use a Deed to reflect the terms of their agreement. 

Perhaps the most important ground on which a Cohabitation Agreement can fail is that of public policy.  This particular ground was considered recently in a case involving a highly unusual Deed of Cohabitation which provided for sexual role play and fantasy.  The outcome of this case is that it is now recognised that a Cohabitation Agreement may be valid and enforceable as long as

(1)    The parties demonstrate an intention to create legal relations

(2)    There is no reference to the provision for payment for sexual services or relations

(3)    The Agreement does not fail on other grounds such as uncertainty, duress, undue influence or misrepresentation.

Overall, despite any uncertainty Cohabitation Agreement may bear, they still seem the best option for cohabiting couples who wish to make provisions for their future. 

Civil Partnership

The Civil Partnership Act 2004 enables same sex couples to obtain legal recognition of their relationship.  As same sex partners do not have the option of marriage, they can register their relationship under the Act.  This gives them legal rights between each other and to third parties.  These legal rights and benefits are similar to those enjoyed by married couples.  However, the Act does not create same sex marriage.  A civil partnership is a specific institution creating rights and responsibilities.  The Act came into force late in 2005. 

The partners of a civil partnership must give notice to their relevant registration authorities of their intention to form the partnership.  They must have lived in England and Wales for seven days and there is a waiting period of 15 days.  Specific relevant information must be publicised during the 15 day waiting period and the couple then have 12 months to make and register their civil partnership. 

A civil partnership document is prepared, signed by the parties with witnesses and a Registrar.  This cannot take place on religious premises.  As in marriages, there are certain people who cannot enter into a civil partnership and it is confined to same sex couples. 

The civil partnership may be dissolved if it breaks down irretrievably.  The same grounds for proving irretrievable breakdown in divorce apply to civil partnerships.  The Courts have similar powers on the dissolution of the civil partnership to those laid down on divorce in relation to children, property and financial matters, non-molestation and occupation. 

Pension sharing Orders can be made but at the moment a surviving civil partner will not receive the same treatment as a widow or widower under the deceased spouse’s Pension.  It is anticipated that the Act will be amended shortly so as to make automatic provision for a civil partner. 

Various other Acts, such as the Wills Act 1837, Public Trustee Act 1906, Administration of Estates Act 1925, Family Provision Act 1966, Inheritance (Provision for Family and Dependants) Act 1975, have all been amended so that civil partners are given the same rights as those that exist for married couples. 

As a result of the Civil Partnerships Act, the Government is coming under increased pressure to afford similar status and rights to heterosexual cohabiting couples as has been granted to same sex couples.  The Government stance remains however that where the parties have an option of marriage, they will only receive such benefits if they choose to exercise the option. 

When a relationship breaks down, it is essential that legal advice is sought at an early stage.  Where there are children involved, this is particularly important.  The father of a child born outside of marriage has no automatic legal rights.  He has to obtain parental responsibility.  This can be obtained by a formal agreement which will need to be registered.  If an agreement cannot be reached, the Court can make a Parental Responsibility Order to give the father these rights.