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Last Updated: Wednesday, 31 May 2006, 14:05 GMT 15:05 UK
Q&A: Cohabitation rights
By Jon Silverman
Legal affairs analyst, BBC News

Couple holding hands
Cohabiting partners could win the same rights as married couples

Law reform body the Law Commission is considering whether unmarried couples who live together should win rights to share each other's wealth if they split up.

About four million people cohabit. What would a change in the law mean for them?

What legal protection do cohabitees currently have?

Legally, cohabitation means living under the same roof. But when applied colloquially to couples who share a home outside marriage or a civil partnership, there are few statutory rights available.

Unmarried couples have some protection under the provisions of the Rent Act and under the cohabitation rule their income and assets are aggregated for the purpose of claiming social security benefits under the Supplementary Benefits Act 1976. A cohabitee can claim maintenance for children but not for him or herself.

On separation, a claim to a share of property can be exercised only by using complicated trust law. By contrast, married couples can go to court to "divide the spoils" (the law was most recently re-shaped by the landmark Law Lords case of 24 May).

When it comes to a share of the assets of a relationship, unmarried couples have no legal remedy to guarantee periodical payments, lump sums or transfers of property from one party to the other when they separate.

Contrary to popular belief, there is no such legal concept as "common-law" marriage in England and Wales.

What has prompted the government to look at this issue now?

The issue has been on the social and political agenda for a number of years. The principal reason is that more and more people are living together outside marriage.

At the 2001 census, there were more than two million cohabiting couples in England and Wales. This was two-thirds higher than a decade earlier.

The government Actuary's Department estimates that by 2031, almost four million couples will be living together outside marriage.

The issue of cohabitants' rights came up at the time of the drafting of the 2004 Civil Partnership Act, which gave same-sex couples many of the rights available to married ones.

The issue has perhaps been given more urgency by the law lords' ruling on divorce which opens up the prospect of generous lifetime payments to spouses while many cohabitants are left deeply impoverished by separation or death.

What legal rights do cohabitees want?

The areas which have been examined by the Law Commission are:

a) Whether cohabitants should have access to legal remedies providing periodical payments, lump sums or transfers of property.

b) Where a cohabitant dies without leaving a will (intestate), whether the surviving partner should have an automatic right to inherit.

c) Whether legally enforceable arrangements can be made by cohabitants to benefit children of the union.

d) Whether contracts between cohabitants, setting out how they will share their property if the relationship ends, should be legally enforceable.

Would all kind of cohabitees be covered (ie even if they lived together for three months), and do they all want legal protection?

It is expected that the Law Commission will recommend that all cohabitants should benefit from the law change, that is heterosexual and same-sex couples, who have not entered into a civil partnership.

It is likely that the financial benefits would not be as generous as those available to married couples.

And the key question of how long a couple must live together before benefiting has to be decided. A period of two years has been suggested.

Some lawyers argue this will lead to one or other partner seeking to end the relationship at one year 11 months in order to avoid the financial obligations which would follow a later separation.

It is impossible to say how many cohabiting couples would welcome a law change. Presumably, the majority, though some of those who have chosen not to get married may be unhappy that, despite their choice, they are being corralled into the "nanny state".

One unmarried couple on their lack of rights

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