‘Cohabitation’, where a couple live together without getting married or entering a civil partnership has become the fastest-growing relationship type in the UK, with more than 4 million couples currently choosing this lifestyle. Despite such relationships being commonplace, the law has been slow to keep up, and combined with a persistent and misplaced reliance on the myth of the “common law spouse”, there is little doubt that cohabiting couples can be left in a much more vulnerable position than those that have chosen marriage or civil partnership.

 

Rights of cohabiting couples on death

The current law in Northern Ireland, and indeed the rest of the UK, can leave a bereaved partner in vulnerable position. There is a widespread misconception that a ‘common law marriage’ can exist – the belief that long-term partners are afforded the same level of protection afforded to them as a married couple. However, this is not the case.

Unlike spouses or civil partners, cohabiting couples do not have an automatic right to inherit their deceased partner’s estate on death if that partner has left no Will, even if they have children together.

Although assets which are held by cohabitants as “joint tenants” will pass to the survivor on first death, where one partner dies without a Will, any assets held in their sole name, or any share of assets held as “tenants in common” will pass to legal next-of-kin according to a statutory order of priority known as the intestacy rules. This could result in the deceased’s estate passing to parents or being distributed amongst siblings, for example.

Bereaved cohabitants may bring a claim to benefit from the estate under the Inheritance (Provision for Family and Dependents) (NI) Order 1979, however, this award is subject to the court’s discretion and requires the cohabitants to have lived together for at least 2 years prior to the deceased partner’s death. Unlike a spouse making a claim under the same legislation, the claim of a cohabitant is limited to that which he or she would require for his or her maintenance.

Furthermore, cohabiting couples cannot benefit from the favourable tax treatment afforded to married couples and civil partners. For example they cannot combine their personal tax, Capital Gains tax or Inheritance Tax allowances, and do not benefit from the spouse or civil partner exemption on transfer of assets between them either during lifetime or on death.

 

Relationship breakdown

There is no legislation or case law which specifically protects cohabiting couples. Upon the breakdown of a relationship, assets and property of unmarried couples will usually be divided according to their legal ownership. The principle ‘each keeps their own’ generally applies, meaning that if property is held in one partner’s name, the starting point is that they are entitled to it absolutely. As current law prioritises financial contributions, this puts pressure on the financially weaker partner to show direct financial contribution towards the acquisition of assets such as the family home and can result in non-financial contributions, such as caring for children, going largely unrecognised.

 

Planning to minimise the risks

Certain steps can be taken to improve a cohabiting couples’ legal position. A couple may wish to consider a cohabitation agreement to help determine how partners arrange their finances and any child maintenance, both during the relationship, and if the relationship comes to an end.

A carefully prepared Will reflecting any intended provision for a partner, and keeping it up to date if circumstances change, is vital.

Where partners are investing in property together, the legal title can be registered in such a way as to clearly define each partner’s contribution. Declarations of trust can also be used to explicitly define the extent of each partner’s interest on relationship breakdown where the property is to be sold or transferred to the other partner.

 

Possible reform

There have been ongoing calls for reform in this area for many years, but little has been addressed. In August 2022 a report by the the Women and Equalities Committee specifically called for reform and for better protection of cohabiting couples, especially those with children. However it seems that reform is not currently high on the government’s agenda, with the greater focus appearing to be on reform of marriage and divorce legislation. The Cohabitation Rights Bill has made very limited progress Parliament. If and when the bill is passed, it will remain to be seen whether Northern Ireland will choose to adopt any similar provisions.

Even in the absence of reform in the short term, there is no doubt that greater transparency in the law and greater education around the legal position of unmarried couples would be beneficial until such times as change is introduced.

 

This article has been prepared by Fiona Kirkpatrick and Lucy Dawson. If you have a query regarding anything in this article you can contact partner, Fiona Kirkpatrick in our Estate Planning department.

 

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.