According to the Office of National Statistics in 2016 the fastest growing family type between 1996 and 2016 were co-habiting couples; more than doubling from 1.3 million to 3.3 million families. Many of these relationships will inevitably come to an end. The government has now introduced the Cohabitation Bill 2016-2017; due for its second reading in the House of Lords. The aim is to create protection of cohabitants’ rights and also provide certainty and clarity in the midst of the current case law conundrum.
Until there is effective legislation in place, cohabitants can only continue to seek protection from the Courts. Contrary to popular belief, unmarried couples have less financial rights than married couples or, those in a civil partnership – their claims are much more limited.
Pension entitlements for cohabiting couples
In Re An application by Denise Brewster for Judicial Review (2017) UKSC 8 Denise Brewster had been living with her partner Lenny McCullan for 10 years when he died, suddenly, in 2009. Lenny had a pension with a local government pension scheme. The scheme required members to prove that they had been in a long-term marriage-like relationship and if so, also sign a nomination form so that any unmarried partner could benefit from the pension if the member were to die. Lenny had not completed or signed the appropriate nomination form.
Denise claimed that the requirement for members who could prove a long-term ‘marriage-like’ relationship to also have to sign a form as a condition, unlawfully discriminated against unmarried couples because married couples did not need such a form. Her claim was based on ECHR, Protocol 1, Article 1 (the right to peaceful enjoyment of property) read with Article 14 ECHR (the right to equal treatment). The Supreme Court agreed with Denise.
So, what is available for cohabiting couples? Well, a cohabitation agreement enables cohabiting couples to formally record the terms of their cohabitation including each person’s contribution to the purchase of property.
A cohabitation agreement can also regulate matters i.e. how contributions to outgoings will be paid, how property/investments can be protected should separation arise, who owns (and owes) what at the time of the agreement, and in what proportions, the current financial arrangements whilst living together; and how property, assets and income should be divided if the relationship ends.
Cohabitation agreements can also cover pensions which may have saved Denise Brewster the cost and time of taking her matter to the Supreme Court several years later after her partner’s death.
Wherever possible cohabitants should aim for an agreement and seek legal advice so that the details are drafted correctly and also ensure each party’s best interests and intentions are kept in mind and clear!