Archive for October, 2011
Suzy Hamshaw, a family lawyer with Charles Lucas & Marshall reports on the rise of cohabitation agreements and argues that even though they are far from perfect, they do give a couple some protection if their relationship breaks down.
I have prepared a large number of cohabitation agreements in recent months and I expect this trend to continue. Given that marriage rates are apparently at their lowest since 1895, it may not seem all that surprising.
However, despite the undoubted popularity of cohabitation, the law, as yet, has failed to keep pace with this choice.
When things go wrong they are at the mercy of property law and the Trusts of Land and Appointment of Trustees Act, 1996, succession law and the Inheritance (Provision for family and Dependants) Act, 1975. If children are involved, the Child Support Agency and the Children Act, 1989 will come into play.
This can result in separate claims being brought in relation to property and children with property being strictly dealt with on the basis of trusts. Contrast this with the list of factors that a court can take into account when dealing with financial claims on divorce under the Matrimonial Causes Act 1975 and the wide discretion of the court hearing the case.
However, it is possible for those planning to live together to formalise their arrangements and enter into a cohabitation agreement. While not perfect, this will go some way to protecting the couple in the event of a relationship breakdown. To be of any use, it is essential that a cohabitation agreement complies with the requirements of contract law and in this respect the agreement must:
- Make it clear that there was an intention to create a legal relationship
- Be entered into freely by each party without duress from the other
- Be precise
- Not be contrary to public policy or oust the jurisdiction of the court
Therefore, an increase in cohabitation agreements is welcome and I hope is perhaps evidence of a greater understanding of the vulnerabilities of the cohabitee. Unfortunately a worrying percentage of people living together still believe that they are a ‘common law’ spouse and protected in some way despite the fact that common law marriage hasn’t existed in England and Wales since 1753!
So, is reform likely? In 2007 the Law Commission recommended that cohabitants should be given rights to financial relief at the end of a relationship to ’provide economically vulnerable members of society with the private means to rebuild their lives and to ensure a fairer division of assets on relationship breakdown and to ensure that the pluses and minuses of the relationship were fairly shared between the couple.’
However these recommendations have not been acted on. In 2009 the Cohabitation Bill did not proceed beyond the House of Lords. It appears therefore that the vulnerability of the cohabitee will remain for the time being at least
On a more positive note, for those cohabiting as a prelude to marriage, the Office for National statistics has good news. The figures suggest that the key to a strong marriage is to live together first. Perhaps this is one of the reasons for recent divorce rates showing a decrease.
For further information contact Suzy Hamshaw on 01635 521212 or firstname.lastname@example.org