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Co-habiting is fastest growing family type

Co-habiting is the fastest growing family type in the UK, with an estimated 3.3 million families now opting to live this way. What legal protection is there though in the event of separation?

How the law stands

When married couples separate the law provides for courts to divide assets in a fair manner having regard to a number of factors including the needs of the parties and children, length of the marriage and age. However, when un-married couples separate there are no such laws in place. They have no legal obligation to each other even where there are children. Property matters are determined only by property law and not necessarily by what is fair and reasonable. Even in a long relationship where one party has contributed toward household outgoings, if the family home is held in the other party’s sole name, there may be no right to an interest in the property.

There is a common misunderstanding that there is a concept of “Common Law Marriage” – people think this gives them some protection but this is not the case and no such concept exists.

There are a number of ways to ensure that both parties are protected when continuing to co-habit:

Cohabitation agreement – this clearly sets out the parties’ intentions with regard to finances, property and even child care arrangements. It can cover a number of areas and help regulate what will happen in the event of a separation.
Will – If one partner dies there is no automatic right to inheritance unless provision has been made in a Will. Even if one partner has lived in the home for a number of years, they could lose the home if not named in the Will or on the title deeds.
Declaration of Trust – where parties purchase a home together but not contributing in equal shares, this can ensure that each party receives a fair proportion of what they have contributed should the property be sold in the future.
Pension – there is no automatic entitlement to the pension of a partner. In the event of death there will only be an entitlement to any benefits if the scheme provides for this and the appropriate nomination has been made.

Resolution will be promoting co-habitation awareness from 27 November in order to highlight the legal differences between married and un-married separating couples.

There are many things to consider for cohabitees and Atherton Godfrey can advise in relation to your specific circumstances. Please contact us on 01302 320621 or email





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Woman fights for share of partner’s pension

Author: Gail Harris

Bureaucratic rules were at the heart of a woman’s fight for access to her late partner’s pension.

Denise Brewster and her 43 year-old partner Lenny McMullen, had lived together for ten years, having bought a house together in 2005. The couple decided to get engaged on Christmas Eve in 2009, but Lenny tragically died unexpectedly just two days after the engagement. He had not made a Will.

Mr McMullan had worked for Translink, Northern Ireland’s public transport service, for 15 years before his death. Both he and Ms Brewster had paid into the local government pension scheme throughout that time.

Although long-term co-habiting partners were eligible for a survivor’s pension under the scheme, this was subject to a nomination form being completed; a form that is not required by married couples.

Ms Brewster commented: “In reality the form is just an additional unnecessary bureaucratic requirement, one which unfairly penalises the families of cohabitees who miss out the financial support their loved ones assumed they would receive on their death.

Instead, all the money we paid into the scheme just goes back into the scheme’s system. Neither me or anyone belonging to Lenny receives it.”

The judge in the first hearing said: “One thing is however clear and that it made no sense for the deceased to ‘wish’ disentitlement upon the women to whom he was engaged. It is irrational and disproportionate to impose a disqualifying hurdle of this kind on the application who was indisputably in a qualifying relationship that fulfilled the substantive conditions of the scheme. “

However, the Court of Appeal over turned the decision. Ms Brewster then took her case to the Supreme Court, who ruled unanimously in favour of her right to receive payments from her late partner’s pension.

The Law Society of England and Wales welcomed the outcome of the case. Robert Bourns, president of the Law Society, commented: “The decision … provides welcome legal clarity for unmarried couples living together and is a step towards equal treatment across the diverse family circumstances people now create.

Other areas of unequal treatment, such as the law around what happens to your property if you die without a Will, unfortunately still remain.

A family solicitor can help unmarried couples make arrangements to ensure outdated legal rules do not mean that their partner misses out should something happen to them.”