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COHABITATION

One of the most notable changes in society in the last 30 years has been the sea-change in attitude to couples living together. Co-habitation now accounts for 70% of first partnerships and 25% of children born are to non-married parents.

Despite these figures the current law in England and Wales does not address the issues of co-habitation and more importantly the break-down of co-habitation in the same way that addresses the breakdown of a marriage.

Many co-habiting couples still believe that there is a mythical two-year milestone when they qualify as a common-law husband or common-law wife, gaining legal rights to property. This is not the case. In nearly all cases property in the name of one party remains that person's property. A family home can be an exception. If it is possible for the non-legal owner to show that there was an intention that he or she should have an interest in the property or that they have made a major financial contribution to the home.

However there is no law which directly deals with the interests of co-habitants and the claim will need to be made under the general law dealing with ownership and interests in land.

On death co-habitants do not enjoy the protection under the law as their married peers. If a wife or husband dies without leaving a Will, the spouse will automatically inherit part or all of their partners assets. This is not the case for couples who live together - although a dependent can make a claim against the estate the right to inherit is not automatic. Also, couples who have sufficient assets to be liable for inheritance tax do not enjoy the same exemptions as those who are wedded.

Similarly same sex unions do not have the same recognition as marriage under the law and hence gay couples do not benefit from tax benefits or laws promoting a fair division of assets on breakdown of a relationship - no matter how long-standing.

Where couples have children the difference between marriage and co-habitation does narrow somewhat. Responsibility for ensuring that children are maintained on breakdown of either type of relationship falls primarily to the Child Support Agency (CSA). Where either parents are on states benefits (married or not) the CSA will automatically be involved. Where neither parent is reliant on benefits agreement can be made between parents, if they wish to thus avoid the CSA's jurisdiction.

However, despite maintaining a child (whether through the CSA or not) a non-married father will not necessarily enjoy the same recognised right to involvement in his child's life as the married/divorced father. Marriage whether before or after the birth of a couple's child gives a father automatic Parental Responsibility (PR) along with the child's mother. That is a joint responsibility for the child but also the right to be involved in major decisions affecting the child - choice of religion, school, doctor etc. The co-habiting father is not recognised as having PR unless the co-habiting mother agrees to sign a Parental Responsibility agreement.

Co-habitation - may seem initially more straight forward than marriage - but the lack of law to protect the unwary - means there may still be a minefield to negotiate when the relationship breaks down - its just a different field.

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