What are the legal risks of cohabiting with a partner? Ex-judge STEPHEN GOLD explains

Stephen Gold: No court has the power to order one ex-cohabitee, even a multi-millionaire, to pay maintenance to the other – a child is another matter

Stephen Gold is a retired judge and author who has written popular series for This is Money on topics including how to be a successful executor, consumer rights and divorce.

In part one of a new guide on cohabitation, he debunks common myths about the legal rights of unmarried couples and looks at potential changes in the law to strengthen them.

Not getting married could save you £26,000: the average cost of a wedding, ring and honeymoon. 

With cohabitation, you cut out this expenditure. When did you last receive a gold-embossed invitation from proud parents to celebrate a couple’s entry into cohabitation, with live band and carriages at midnight?

And if things don’t go to plan, there can be advantages too. 

The unfortunate end of a cohabitation relationship won’t require the seal of a judge, and so there is a saving too of a family court fee of £593 to collect a divorce or civil partnership dissolution order.

Too good to be true, for some.

For others, religious beliefs, family objections, the conviction that the formality of marriage or civil partnership will help to stabilise the relationship, the desire that children of the relationship should not be treated by the law as illegitimate and a host of other reasons will contribute to cohabitation being a ‘no no’ for them, except, possibly in the early days as a tester of the relationship.

But one in five couples in England and Wales live together without being married to, or in a civil partnership with, each other.

It seems that when surveyed, around half of them of them believe that they have the same legal rights as married couples or civil partners. But are they right? We debunk some of the common myths around cohabitation. 

The quiz for cohabiting couples

Q: Do cohabitees have the right to apply to the court for maintenance for themselves, in the same way as a married person or civil partner, if their relationship ends?

A: No, no, no! The idea is often bandied about that there is such a thing as a ‘common law’ spouse or partner.

Sorry to have to convey disappointing tidings, but there is not. Whether the cohabitation lasted one month or 20 years, its end could still spell financial disaster for one of the couple.

No court has the power to order one ex-cohabitee, even a multi-millionaire, to pay maintenance to the other, for any period of time.

Cohabitation: Not getting married could save you £26,000 – the average cost of a wedding, ring and honeymoon – but it also means you miss out on legal protections

Maintenance for a child is another matter entirely which we will look at later. It is maintenance for the exclusive benefit of the ex-cohabitee personally we are looking at here.

And, just as there is no power to order maintenance, the court has no power to grant any of the other financial settlements that are available on divorce or civil partnership dissolution.

That means, for example, an application for a lump sum of money is out. An application for a share of the other’s pension is out.

But it may be possible for a cohabitee to nominate their co-cohabitee to receive what would be payable by the pension managers on and after death.

Q: Can either ex-cohabitee ask the court to allow them to remain in the home which they had lived in during the relationship?

A: They can ask, and we will see later how that might be achieved.

However, as a general rule, if the property is in the sole name of the other person, being able to stay put or getting a share out of the home when it is sold may be legally impossible.

Q: If one cohabitee dies during the relationship and has not made a will, does the survivor have any entitlement to their assets?

A: There is no automatic entitlement. The intestacy laws would apply which enable spouses, civil partners, children and other relatives to collect in specified priority order, right down to half-uncles and aunts and their descendants if nobody closer is around.

Cohabitees are not recognised and the intestacy laws give them nothing. They may be able to overcome this as I will explain later. But it will mean court proceedings and so a certain amount of hassle.

Q: Can one cohabitee adopt the surname of the other cohabitee?

A: We can all call ourselves whatever we wish. Legally, the name change can be made with a click of the fingers but you might then run into trouble with the passport office in proving that Ms Brown is now Ms Smith.

The solution is to sign what is called a deed poll and produce a copy to whoever wants to see it (you can find a template deed poll in my book – see below).

So, by all means, adopt the surname of your co-cohabitee if it appeals to you both. You can even pretend you are married, if you like. 

That is provided that doing so is not for some dishonest reason, such as obtaining credit to which you might not otherwise be entitled. Do that, and you could soon be occupying the last remaining prison space.

Once upon a time, it was against the law to falsely assert that you were married to someone else and they could take you to court to stop you from continuing to do so.

They would apply for a jactitation of marriage declaration. I was sad when that right was abolished in 1986. They don’t make ’em like they used to.

Q: Can a cohabitee avoid inheritance tax on their death by leaving everything they own to their co-cohabitee?

A: No. A married person or civil partner can avoid their estate having to pay inheritance tax on what they leave to their surviving spouse or civil partner.

The late comedian Ken Dodd ensured HM Revenue & Customs were positively untickled by depriving them of millions in marrying his long-time girlfriend just two days before his death and making a will substantially in her favour.

The potential saving, not available to a cohabitee, is tax at the rate of 40 per cent on the value of assets worth over £325,000 (after debts have been deducted) which are to go to the spouse or civil partner.

There are other means of avoiding or reducing inheritance tax which are available to a cohabitee such as giving assets away while alive. That could avoid or save on inheritance tax, so long as the cohabitee making the gift survives for at least three years.

Q: If one cohabitee promises to marry the other, whether before cohabitation begins or during it, and then reneges on the promise, can they be sued?

A: It used to be possible to sue for damages for breach of promise of marriage – and there were quite a few claims – but this right was abolished in 1971.

One of the defences was that the claimant was of bad character which was unknown to the promiser when the marriage proposal was made.

The marriage had to have taken place within the time specified on proposal and acceptance or, if none, within a reasonable period. Equally, it would not now be possible to claim damages for breach of an agreement to enter into cohabitation.

Q: Where cohabitees break up, what happens to the items they have owned?

A: Charity shop, here we come! I am referring to what judges and lawyers love to call ‘chattels’ by which we mean items of property other than land, or a house or flat.

Generally, if the chattel belongs to one of them then they are entitled to keep it. So that’s the collection of Screamin’ Lord Sutch records dealt with.

And if they regard the item as jointly owned by them both, which could be the settee they bought after they had moved in together, they need to be sensible and divide such items so that each ends up with chattels to the value of one-half of the lot.

After all, half of a settee is of little use to anyone unless they only lean on just one arm. If they cannot agree then a county court claim could be made by either for a declaration about which one owns what.

If the cohabitees have been engaged to be married and the engagement has been broken off, then either can bring county court proceedings under section 17 of the Married Women’s Property Act 1882.

I am not joking. Aged 142, that particular statute is still going strong and, when using it, you just have to forget you are not a married woman, even if you are a hairy man.

The advantage of being able to bring a case using the 1882 Act is that, in deciding how to share chattels, the court can take into account money spent or work done in improving it provided it was of a substantial nature.

Retired judge and writer Stephen Gold 

Ex-judge Stephen Gold’s The Return of Breaking Law, published by Bath Publishing, is an irreverent guide to legal rights and winning in court or losing well. 

It gives more information on the topics covered in this series of articles and is full of tips and templates. 

Among the numerous other areas featured are consumer rights, financial remedies on divorce, succeeding on small claims, making a will, battling with sellers, creditors, domestic abusers, lenders and landlords – and how Stephen coped as lawyer to the Kray Twins.

They may then be awarded an interest in the chattel which belonged to the co-cohabitee or a bigger interest than they already had. These proceedings must be started within three years of the termination of the engagement.

It is likely, if asked, that the court will allow a claim over chattels to be dealt with under the well-known small claims track, provided the value of items in dispute does not exceed around £10,000.

Is the law wrong?

You may think so. The new Labour Government is committed to change the cohabitation law, but it has a few other things on its plate to grapple with first so don’t hold your breath.

However, a taste for what legislation on the subject may look like can be gleaned from the private members’ Cohabitation Rights Bill which received a second reading in the House of Lords last December and passed through to the committee stage but was then lost.

It reflected most of the recommendations which had been made for legal reform by the Law Commission in 2007 and again in 2011.

It provided for rights and responsibilities to cohabitees and former cohabitees similar to those currently available to spouses and civil partners on breakdown and death.

They would have principally applied after cohabitation had lasted for at least three years or, otherwise, when there was a child of the relationship, born or expected.

But it would have been open to the couple to opt-out of the rights which would have applied, by a highly formal written agreement – a sort of cohabitation pre-nuptial agreement – but still leaving one of them able to later apply to the court to vary or revoke the agreement.

IN PART TWO… Stephen Gold explains how unmarried couples can strike agreements over anything from pets to housework, children or pensions.

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