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Isabel Thornton discusses the legal issues surrounding co-habitation
So, Sir Nicholas Wall, president of the Family Law Division, clearly believes that unmarried couples should have the same property rights upon separation as those who are married. The current law, in his view, leaves women short-changed; while married women getting divorced may claim maintenance from their spouse on their own behalf as well as for the children, unmarried women can claim only for their children, not for themselves. Women are also, in Sir Nicholas's view, “severely disadvantaged by having their property rights determined by the conventional laws of trusts" in contrast married couples know before they split that they have a legal interest in any property owned by their other half.I have a personal interest in this subject. As a former cohabitee of too many years to count, who has only recently agreed to make an honest man of her partner, would I have been better off “living over the brush” – or is marriage a safer place to be?
The answer is clear. As the law currently stands, unmarried partners get nothing if their partner dies without making a will. A lot of people find this very surprising. What is even more surprising is that the length of the relationship or the existence of children makes no difference. Surely if you have been together over 20 years and have five children together, you would be entitled to something? I am afraid not. If one partner dies and the surviving partner wants to challenge the lack of provision for them, they face protracted and costly litigation under the Inheritance Provision for Family and Dependents Act 1975. There is no guarantee of success.Under new proposals, couples who live together for more than five years or who have children together will be treated as if they are married, if one of them dies without making a will.However if you have only been together for between two to five years, the surviving partner would get just half of what a married spouse would get in the same circumstances. But do the proposals go far enough and for how long can the changing nature of relationships within our society be ignored. I believe that with increasing numbers of us choosing to cohabit either before marriage or instead of marriage, the law requires reform and fairly rapidly.
I feel the need to also point out that some feel that the existing law for married couples is deficient too. Contrary to popular belief, spouses do not automatically inherit all of their deceased spouse’s estate. For example, if the estate of the deceased spouse exceeds £250,000, the spouse will only receive the first £250,000, the deceased’s personal items and a right to an income from half of whatever is left. The children will receive the remainder. This can often lead to inequitable and unfair results for the surviving spouse – and can also result in financial hardship at what is already a very difficult time. This, however, is another topic for another day.
To co-habit or marry, now that is definitely the question…