Getting protection without the marriage

Couples living together do not have the same rights as married couples and civil partners. Picture: Getty Images

There is nothing quite like falling in love and starting a life with someone. For many people, it is a time full of hope and excitement, during which important life decisions are made with more than a little pinch of optimism.

And that’s how it should be. Moving in together, buying a property, having children – these are all important and exciting times in couples’ lives. Whether you’re choosing to wait and get married at a later date, or have no intention of ever tying the knot, my wish for you is that you enjoy every moment of your new domestic arrangement.

What I also hope is that you have taken the necessary steps to protect yourself should circumstances change for any reason.

More and more people are choosing to live together without marrying, and a significant number of these are also having children. The number of children born to unmarried parents in Scotland has increased steadily from 8 per cent in 1971 to over 50 per cent in 2013. Across the UK, cohabiting couples, both with and without children, are the fastest-growing type of family.

However deeply in love you are, it is worth pointing out that you might not be as safe or secure as you think you’ll be should the relationship end, whether through breakup or the death of a partner.

Although Scottish law provides basic rights for cohabitants whose relationships end, couples living together do not have the same rights as married couples and civil partners. As a result, you will not be protected in certain aspects of property ownership and parental rights.

Taking action to ensure that both sides are protected fairly is not equal to signing a death warrant on your relationship. In contrast, it often adds a layer of security to the relationship by providing the kind of certainty and formal commitment already in place for married couples.

For many couples, the easiest way to deal with this is to enter into a cohabitation agreement. This is a legally binding document which sets out how property will be divided, what support will be given if a one of the couple has to give up work to look after children, how pensions will be covered and what other assets accumulated during the relationship will be split.

It is very similar to a prenuptial agreement and should help both of you to feel comfortable that most practical arrangements have already been agreed and clarified, making it slightly easier for everyone involved, whatever the outcome of the relationship may be.

Without a cohabitation agreement in place, the risk of stressful and expensive legal disputes increases – for example, if the relationship breaks down acrimoniously or ends with the death of a partner whose family attempts to pursue any property occupied by the unmarried couple.

It is also important to keep your arrangements current. A good practice for any legal documents pertaining to a family is to review them regularly – especially at milestones such as childbirth, long-term sickness, or retirement.

This is because if a cohabitation agreement is in force when a relationship ends, it can’t easily be set aside if considered unfair or out of date. As a legally binding contract, the court can only overrule it in extreme circumstances where the principles of contract law have been breached.

A common type of case is where one partner moves into the other partner’s property and signs a cohabitation agreement undertaking not to make any claim to the property if the relationship ends. Many such agreements specifically discharge all rights arising out of the cohabiting relationship.

While that may be reasonable if the relationship ends within a few years and there are no children, the balance may change significantly as time goes on. This partner would likely be at a significant disadvantage if he or she had invested any money in the property, or given up work to look after any children born during the relationship. A fair and current cohabitation agreement would help avoid some of this stress and potential for financial devastation.

Overall, my advice is to recognise that just as your relationship develops, so will the practical responsibilities associated with it. Living together is both a romantic and a practical undertaking, and it is best to ensure you have adequate agreements in place to manage assets so that if the worst happens, whether that is a death or a relationship split, everyone – including any children- will be looked after properly.

• Philippa Cunniff is a partner and head of family law at HBJ Gateley