Philip Giles explains how private client, property and family departments can best work together when advising co-habitees, highlighting the risks and opportunities involved
As lawyers, we are not purveyors of romance – nor are we expected to be. But how do we begin to approach getting clients who are in a cohabiting couple to think about all the things which can go wrong in their relationship? The two big events they need to think about are, of course, separation and death: not exactly an easy sell. However, we are duty bound to give some meaningful advice to this couple, and this presents an opportunity to offer a range of legal services, some of which the clients may not have even realised they needed.
Lord Hope of Craighead held, in the House of Lords case of Stack v Dowden  UKHL 17, that ‘cohabiting couples are in a different kind of relationship… Living together is an exercise in give and take, mutual co-operation and compromise… A more practical, down-to earth, fact-based approach is called for…’.
Much depends, therefore, on the profile of the clients. A young couple in love buying their first home are usually neither inclined nor endowed enough to contemplate making a deed of trust, cohabitation agreement or will, unless there is a parent prodding them along and picking up the bill. A ‘second-time-around’ couple, perhaps with children from their previous relationships, are already alive to the importance of protecting their position, usually motivated by providing for their children, and are willing to have that difficult conversation with their solicitor.
One discussion taking place in the courts at the moment is around the growing need to take a consistent approach with cohabiting couples, if there is no express agreement as to the couple’s intentions from the outset. Cohabiting couples do not have the same legal rights as those who are married; for instance, cohabitees are not automatically entitled to the other party’s estate upon death, or to a share of the property upon separation, and problems can arise in situations relating to parental responsibility for any children. Without any express formal arrangement, the courts are frequently having to consider what is ‘fair having regard to the whole course of dealings between them’, as highlighted by Lord Justice Chadwick in Oxley v Hiscock  Fam 211 at paragraph 69.
It is the ‘whole course of dealings’ that we as solicitors must review for our clients. This will enable us to act in their best interests and provide a proper standard of service.
A sole practitioner is probably best placed to identify and deal with the various components of this couple’s needs, build rapport and sell them the legal products they should have in place; there are no referrals to other departments in anticipation that they will pick up the enquiry properly. This is essentially ‘one-stop shop’ advice.
In larger high street firms, it is frequently the conveyancing department which will first have contact with this type of client – this can spell danger. These departments are usually working under pressure and to a fixed fee, dealing with high volume work; as such, the advice they provide about joint ownership (joint tenants or tenants in common) might be given routinely in a standard letter slotted into a workflow, and the recommendation to make a will or have a deed of trust (and/or cohabitation agreement) might be given in a perfunctory way. This approach fails the clients, who deserve more detailed advice, and risks a claim on the insurance in the future. But it is also a missed opportunity to take on more lucrative ancillary work (eg drafting a cohabitation agreement), and/or add clients to the firm’s database (if the clients are making a will).
As mentioned by Baroness Hale of Richmond in Stack v Dowden, ‘context is everything… and the domestic context is very different from the commercial world. Each case will turn on its own facts… Many more factors than financial contributions may be relevant to divining the parties’ true intentions’. It is therefore beneficial to our clients to thoroughly review the couple’s circumstances and provide advice, even if the advice – which will invariably cover the possibility of divorce and the certainty of death and dying – is not what they want to hear.
The twin elements of giving necessary advice and maximising the chances of receiving multiple instructions are complementary. Where the clients are an unmarried couple, it will rarely be the case that supplementing a conveyance with a deed of trust (and/or a cohabitation agreement) and wills is not in their best interests. Let us not be apologetic in driving home this advice – we are fulfilling our duty in doing so. This advice must be front and centre, and not buried somewhere in a standard letter. Do not let the modest benefit we receive from the average conveyancing fee feed another firm’s litigation department because the couple were not properly advised about joint ownership and they split up (next stop: resulting trusts, constructive trusts and the Trusts of Land & Appointment of Trustees Act 1996 (TLATA 1996)), or because they did not properly cover their tenancy in common with a deed of trust and will, which could bring the surviving partner into conflict with the deceased’s family (next stop: the Inheritance (Provision for Family & Dependants) Act 1975 and perhaps TLATA as well, for good measure).
The point is, there is ‘no single, or paradigm, set of circumstances’, as stated by Lord Hope in Stack v Dowden, and thus every opportunity should be considered when taking the clients’ instructions, which could in turn minimise the risks as all factors are reviewed.
Best practice tips
It’s clear that engaging a client couple who have just come into your firm for some conveyancing work into giving wider instructions, and then making the most of those instructions, is going to be a challenge. Perhaps think about introducing some of the following ideas into your workflow.
- Document a process for identifying these cases (inserting steps into your conveyancing workflow if you use a case management system); this ensures consistency of method.
- Assign the clients to one lawyer in the firm who can give all the advice (even if the work is completed by colleagues); this way, nothing falls between the gaps and the clients have one point of initial contact.
- Carry out a complete fact-finding mission with the clients in order to really understand what they need. Develop a standard instruction checklist which forms part of the file and is good for risk management, but the fact-finding itself should be a conversation, not a series of closed questions.
Baroness Hale in Stack v Dowden provides a useful, but not exhaustive, list of factors to consider to ascertain the parties’ true intentions and circumstances. For example: any advice or discussions at the time of the solicitor’s instruction and any subsequent changes in their circumstances as the matter progresses; the nature of the parties’ relationship; arrangement of finances (separately, together or a bit of both); and discharge of outgoings (whether they have any financial dependents or any children together or from a previous relationship).
- Follow up with the clients so you either receive instructions to proceed, or they positively instruct you not to proceed with certain elements; this way, the client has to make a decision.
- Check with the clients as the matter progresses as to whether there have been any changes in their personal or financial circumstances, as this may alter the advice you give.
- Offer a range of packages at varying prices to the client (from basic to enhanced), which all include the conveyancing, a will and a deed of trust / cohabitation agreement; greater choice leads to more instructions.
- Have the clients sign a disclaimer if they decide not to go ahead with the non-conveyancing elements; this focuses the mind of the client, and protects you.
- Emphasise to the clients that a cohabitation agreement is a living document. Diarise a follow-up meeting with the clients for two years post-completion; this may coincide with the end of a fixed-term mortgage product they have, and it may be that their circumstances have changed and they require an amendment to the agreement. If nothing else, it keeps you in touch with your client.
- Ensure all files are archived together in due course; if a problem ever arises in the future, you have all the advice given in one place.
As with a lot of what we do, systems are key in ensuring that clients receive all the advice they should, and that firms maximise the range of instructions they receive. Converting instructions, however, ultimately comes down to how you deal with the client; some lawyers have better soft skills than others, so it’s important to identify who within your firm is best placed to deliver on this.
Statistics show that cohabiting couples with families continue to be the fastest growing family type in the UK – there were 3.2 million cohabiting families in 2015. With this in mind, there are plenty of opportunities available to the solicitor – just be aware of the risks, and remember that ‘context is everything’.