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Are politicians on the way to giving cohabiting couples legal rights?

Last week's news that the Liberal Democrats have passed a motion to improve the rights of unmarried couples living together on separation and death was fantastic to hear.

The new Lib Dem policy states that cohabiting couples should have greater financial and property rights when their relationship ends. It also calls for reform on the law of intestacy - death without a valid will - so that the estate of the deceased person can be passed onto the surviving partner.

This is something I, as a family law solicitor serving St Helens, Liverpool and the north west have campaigned for, for a number of years particularly in my role as chairperson of the north west group of Resolution. Read my blog isn't it time cohabiting couples had some rights to find out my advice for couples living together.

Thankfully, at least one of our political parties is seeing sense particularly as statistics form 2012 showed that 5.9m people were cohabiting in the UK- double from when the last survey was conducted in 1996.

And it really is time that England and Wales caught up with Scotland where unmarried couples living together already have legal rights upon separation. After all, we are, at the moment, the United Kingdom.

But whilst it's a step in the right direction, we must not get too excited. After all, politicians had the chance to rectify the situation for cohabiting heterosexual couples when they were discussing the Marriage (Same Sex Couples) Bill and didn't!

What has spurred the Liberal Democrats to announce this new policy?

It is difficult to answer this question but as a solicitor serving the Wirral, Liverpool and the north-west I hope it's because they have realised that cohabiting couples are increasing and not decreasing. In fact, they are the fastest growing family type in the UK, yet there is still little or no protection should they separate.

Resolution has also just published a survey which confirms that most people have the mistaken belief that common law marriages exist, which is hasn't done since, would you believe, 1753!

The results were put together after 157 MPs were interviewed between June and July of this year. They were asked a series of questions one of which showed that 60% believed cohabiting couples needed better legal protection should they separate. They also revealed that many of their constituents believe that couples living together have the same rights as married couples, which they don't.

What are the main legal differences between living together as a married couple (or in a civil partnership) and an unmarried couple living together?

As a family solicitors in Liverpool, I am often asked by clients who have been cohabiting what their legal rights are, so I thought it would be a good idea to share these with you.

  • Tax - if you are married the transfer of assets between husband and wife are exempt from capital gains tax and inheritance tax where as for co-habiting couples, there is no exemption
  • Pensions - usually, a spouse is entitled to inherit a deceased wife or husband's pension rights but an unmarried partner in a cohabiting relationship does not have the right to do this. Beware though that some pensions have criteria relating to whether the couple are still cohabiting even though they are legally married, but are actually separated, so it is very important to check the small print on these pensions.
  • Registration of the birth of a child - if the mother or father are married then either of them can register the birth but if the couple aren't married, only the mother can register the birth. Also if the father is estranged from the mother, then his name may not appear on the birth certificate and therefore won't automatically have parental responsibility for the child. In that case he would need to get agreement from the mother, or if she was not in agreement, he would need to apply to the family court.
  • Registration of a death - a married person can register the death of his or her spouse but an unmarried person can't register the death of the person he or she was cohabiting with
  • Inheritance - if one spouse dies without a will, then the current law of intestate means that his or her assets will pass to the surviving spouse. But if a cohabiting partner dies without a will, then the surviving partner has no automatic right to his or her partner's assets
  • Divorce - when a marriage comes to an acrimonious end and an out of court financial settlement is not agreed by both parties, the fate of the marital assets could be determined by a judge under matrimonial law, unless the couple have entered into an agreement after getting married or have signed a pre-nuptial agreement
  • Getting a mortgage - both married and co-habiting couples will usually be granted a mortgage on the basis that they will both be liable for non-payment
  • A property if it is sold - if it is held as a joint tenancy, both married and co-habiting couples will have a right to a share in the proceeds. But if only one person in a marriage is the registered owner of the property, the other spouse will have an interest in the property under matrimonial law and by way of beneficial interest.
  • Government benefits - these are not dependent on whether a couple is married
  • Child support - both parents, whether married or not, are responsible for supporting their children

How likely is it that the other political parties will introduce a similar policy?

Unfortunately, as a family law solicitor serving St Helens, Liverpool and the north-west, I can't answer this. I know that the Conservatives believe marriage is central to family life and are even proposing to offer tax breaks for four million married couples should they win the next election.

What I do know though, as a solicitor serving the Wirral, Liverpool and the north-west is, there needs to be legal rights for all couples - it's not acceptable for someone to live with another person, have children and then walk way without any responsibility for a former partner's welfare.

All the political parties need to introduce policies that protect the rights of all couples, not just those who are married or are in civil partnerships.

Can politicians ever change the public perception about the legal rights of cohabiting couples? Should cohabiting couples have the same rights as married couples?