What the Cohabitation Bill will mean to couples

A Warwickshire lawyer is warning unmarried couples that they still have no legal protection in the event of a relationship breakdown despite the popular misconception that they are protected by ‘common law marriage’.

The warning comes from Erica Kemp, partner and head of family law at Coventry and Warwickshire firm, Alsters Kelley, after the Cohabitation Bill had its second reading in the House of Lords on Friday, 13 March 2009. The reading is just the second step in a long journey of twelve readings before the Bill can be made an Act of law.

The aim of the Cohabitation Bill is to provide legal protection for unmarried persons living together.

Erica Kemp welcomed the latest stage of the development of the Bill but warned that it would still be several years before couples would benefit from the protection it offered.

"Common law marriage has not existed in England and Wales since 1753,” she said.

"But a large proportion of the population still believe that they are protected by common law marriage – this just isn’t the case.

"At the moment there is little protection for cohabiting couples if their relationship breaks down. The law will treat them as two unrelated individuals and, if no cohabitation agreement is in place, the property law principles will apply to the family home.

"There are safeguards which can be put in place now to protect cohabiting couples until the Cohabitation Bill becomes law.

"A cohabitation, or living together, agreement is not automatically enforceable by the English Courts. However, if it has been properly drawn up and both partners in the couple have sought independent legal advice, it may be looked upon favourably by the Court in any separation proceedings.

"You can use a cohabitation agreement to set out in advance how property and assets will be divided in case of separation. Not everyone wants to get married but it makes sense to safeguard your future in case circumstances change.

"A cohabitation agreement, alongside effective property contracts and a valid Will, can ensure that if the relationship fails, or one partner dies, a fair outcome is more likely.”

The Cohabitation Bill was proposed by Lord Lester who has a strong track record of achieving change – introducing the Bills which influenced the Forced Marriages Act 2007, Civil Partnership Act 2004 and Human Rights Act 1998.

Recent statistics suggest that married couples are in the minority for the first time since records began, weddings are at a 100-year low, and fewer than 50% of the over-16 population had marriage status in 2007.

In contrast, one in six couples in the UK in 2006 were cohabiting – that’s 2.3 million couples. And, this is projected to almost double by 2031 – over one in four couples will be cohabiting.