National statistics recently released have revealed that more people than ever now cohabit without ever marrying, and predictions are that this will continue to grow. In 2008, 15.3 million people in England and Wales had never married, representing about 35 per cent of the adult population. The predictions are that by 2033 this will increase by almost half, with the number of those not marrying being higher in number than those who choose to marry. Fears that the importance of marriage is no longer at the forefront of our minds have prompted lively debates amongst the Government; Church Leaders and academics. The Coalition Government Agreement last month said: "The Government believes that strong and stable families of all kinds are the bedrock of a strong and stable society. That is why we need to make our society more family friendly."
Yet the attitude of people does not mirror this and there are concerns that the sanctity of marriage, and the commitment that involves, are just not a priority to the majority of our population. However, if the relationship fails or one of the couple dies without making a Will, people soon realise that the law certainly prefers married couples. The age old myth of common law husband and wife is exposed as just that…. A myth. In law, there is simply no such thing and when sorting out disputes between former cohabiting couples, there are no equivalent provisions for those of divorcing spouses. They are treated the same as two friends; a brother and sister separating and no credit is given for the years of commitment they have given each other.
Last year, the Law Commission proposed that unmarried couples who live together for two years will be automatically entitled to half their partner's estate if they die without a Will. However, these were just proposals and no concrete plans are in place to implement these proposals.
Until some legislation does come in to force, a couple can protect themselves by entering into a cohabitation agreement. This can set out how the finances between the parties will be dealt with during the time they live together; on separation and on death. They will be upheld by the Court as long as the agreement is signed freely by the parties with the benefit of full disclosure and legal advice. We have seen a major increase in instructions to prepare these over the last 12 months. They are often seen as taking the romance out of a relationship, but a bit of money spent on drafting such an agreement can save a fortune on legal costs on an area of law that by it’s very nature is a complex mix of contract, property and trust law. We see it as a form of wealth planning and protection that will hopefully not be required by the couple but is there if needed.