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If you are one of the 2.5 million unmarried couples living together in the UK, then you won’t have the legal rights of those who are married or in civil partnerships.

Many people believe that after a period of time, couples become “common law” husband and wife and therefore have the same rights as if they were married.

This is not the case.

With the number of married couples predicted to fall below 50% of the population within 5 years and the number of co-habiting couples fast on the increase, the general view is that the law must catch up to give co-habitees the same legal rights as those who are married or in civil partnerships.

What is the present position?

Long term co-habitees often find themselves in difficulty on the death or breakdown of their relationships when they discover:

1. They have no rights to the home they have been living in where the property is in the sole name of their partner or they have not put their own cash into the purchase.
2. They cannot benefit under the terms of their partner’s pensions or life policies.
3. They have no right of maintenance.
4. Only their children have any right to maintenance and in very limited circumstances to lump sum/capital.

So is anything being done to change things?

The Law Commission are looking at the problems and in particular:-

1. If your partner dies without making a Will, whether you should have rights to inherit as a surviving spouse would.
2. Whether on separation you should have any right to maintenance or a lump sum even if you have not made any contribution towards your home or it is in your partner’s sole name.
3. Whether the equivalent of pre-nuptial contracts should be legally enforceable.

It is being mooted that any new laws should only apply to co-habitees with children or those who have been together for more than 2 years.

Consideration of changes in the law has been prompted by the availability of legal protection to gay couples under the Civil Partnership Act.

These proposals are all at an early stage but they are bound to be highly controversial. There are (as always) complaints from the church that such measures will undermine the status of marriage.

So how can I protect my position in the meantime?

The reforms may come too late to be of any significant help to those facing this problem today, but if you can answer yes to any of the following questions then you should seek legal advice:-

• If the house is in your partner’s sole name, have you helped financially other than paying your normal share of bills? For example, have your wages or savings paid for improvements to the property such as a conservatory, kitchen or bathroom?
• Has your partner ever promised to transfer your home into joint names but he or she “just never gets around to it”?
• Can you prove any financial contribution by way of bills, receipted invoices, cheque stubs, transfers out of your bank account/building society account?

If you are starting out on a new relationship would a written agreement be any use?

You can increase the chances of any such contract being accepted by the court if you seek independent legal advice beforehand and ensure that your partner does likewise.

What about the equivalent of pre-nuptial agreements? There is no guarantee that such agreements will be accepted by the courts although the courts increasingly give weight to them, however they are very useful as the agreement is clear evidence of who owns what as well as what contributions each of you are making towards the rent or mortgage and will help you divide your assets if the relationship comes to an end.

In conclusion, if you are not planning to marry before setting up home together and if you buy property together, make sure you buy as “tenants in common” rather than as “joint tenants”. This way you can leave your share to someone other than your partner on death and you can also specify the proportion in which the property is owned reflecting your contribution.

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