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Breaking the myth - Are you cohabiting? Then make sure you know your legal rights

Divorce rates are dropping according to figures out recently with rates similar to those in 1970s. The Office for National Statistics reported that 114,720 divorces were granted in 2013; a fall of 2.9 per cent from 2012. Reports further indicate this could be due to the growing number of people who decided to live together before getting married – cohabiting.

Cohabiting before marriage has become more popular over the last decade with more couples opting to live together before tying the knot and often see this as a big enough commitment to one another.

However, cohabiting can leave couples open to potential loss if the relationship breaks down and the couple separates.

It’s a myth that a “common law spouse” exists and in simple terms, couples who cohabit do not enjoy the same legal rights as a married couple.

David Lister, a solicitor in our Sheffield team, says: “Many new, non-married clients often say to me “we have lived together for years as common law man and wife, so I have rights, don’t I?” I have to tell them, in every case, that there is no such thing and, in most cases, they have very few rights, if any.

“Imagine having lived with your partner for 30 years, you have never contributed to your own pensions because you had always imagined that you would share your partner’s pension on retirement. The court has no mechanism to order a pension share unless coiples have been married. What would you do when you retire?

“What if you have always paid your partner money towards bills but have lived in a house in their sole name? Were the payments clearly labelled ‘mortgage contribution’? Or will your partner say you were just paying rent to live in their property? If so, how do you establish an interest in the property?

“There are some cases in which claims can be brought by non-married parties against their former partner, for example on behalf of children pursuant to Schedule 1 to the Children Act 1979, or against property via the Trust of Land Appointment of Trustees Act 1996.

“Both types of claim are complex and it is important to adopt the right strategy and apply the law correctly from the outset in order to achieve the best outcome for you and your children.

“The alternative is to have an agreement drafted which defines and regulates the rights and responsibilities of the parties whilst they are living together and if they separate.”

Whilst divorce rates drop generally, the same can’t be said for the over-fifties. There has been a steady increase, with the number of over fifties whose marriage ended, rising by nearly three per cent.

Sheffield Partner Zoe Round said “The issue of so-called silver separation is now more common. We have seen a number of cases where people at this point in their life simply drift apart, often as a result of empty nest syndrome when children have grown up and left the home. This shifts the dynamics of a relationship and can mean that issues or animosity which has been placed to one side in the past come to the fore.

“It was once taboo to the divorced but now society recognises that sometimes it is healthier for both parties if the relationship comes to an end, rather than being trapped in an unhappy situation.

“When elderly couples separate, there are complex issues to consider too. We have links with specialist pensions actuates who can assist us with helping parties achieve an equalisation of pension income on retirement and we also work alongside tax and estate planning specialists who can help to ensure that there are no hidden surprises for other family members later down the line or settle property on trust for future generations, such as grandchildren”.

Key Contact

Zoe Round