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Cohabitation agreements: the common law marriage myth

The term common law wife/husband has been around for decades. But is the ‘common law’ spouse a real thing? And do unmarried partners have any rights when it comes to cohabiting?

The simple answer is – no. The common law status is a bit of a myth that while it sounds official, has no legal standing in UK law. If you’re unmarried and cohabiting with your partner (both heterosexual and same-sex couples) then unless you’ve drawn up a cohabitation agreement then neither of you may have any rights over property, possessions or finances owned by the other should the relationship break down.

What is a cohabitation agreement?

It’s not the most romantic thing to talk about with your partner, but a cohabitation agreement is one of those things you need to think about if you’re seriously contemplating living together. Sometimes called a ‘Living Together Agreement’, cohabitation agreements set down on paper exactly who owns what, how the ownership of existing property is distributed, what your financial responsibilities are, and how savings and assets are to be divided in the event of a split.

Bear in mind, though, that a cohabitation agreement focuses purely on assets – it does not represent a formal recognition of your relationship in the same way a civil partnership or marriage does. So even if you do draw up an agreement, you’re still not ‘common law’ (or any other law, for that matter) spouses.

What do cohabitation agreements cover?

A cohabitation agreement is particularly important if one or both of you are investing in a property purchase. The agreement will set out in black and white exactly who owns what, who is responsible for the financial details of the purchase, what proportion of the payments each of you will make (whether it’s a purchase or a rented property), how bills are dealt with, and other financial factors.

What if you move into your partner’s home?

If your partner owned the property before you started living together then a cohabitation agreement can ensure that this is ‘ringfenced’ and remains the exclusive property of the original owner, preventing the new partner from having any kind of claim over the house. However, if that new partner then contributes financially to the upkeep, renovation or pays all or part of the mortgage then they may be able to dispute any agreement that excludes them from claiming ownership of all or part of the property.

Do you need a will?

Yes, you need a will to ensure real peace of mind. Common-law relationships leave both parties extremely vulnerable if one partner dies, especially if they die without leaving a will. The surviving partner will not automatically inherit their partner’s estate, and how the estate is divided up could be disputed by immediate relatives of the deceased partner, leaving the surviving partner with nothing, and no legal protection, either. A will ensures the fair distribution of an estate according to the individual’s wishes, whether you’re married, in a civil partnership, or cohabiting.

Are cohabitation agreements legally binding?

It is true that cohabitation agreements can be disputed in a family law court, but the existence of an agreement does make things much clearer and gives you more reassurance that both of your assets are protected. Similar to a pre-nuptial agreement, they not only give you a clearer understanding of who owns what and what your financial obligations are, but if things do escalate it provides evidence of both of your intentions if you end up in court.

However, if constructed properly (and for that we strongly advise the help of a fully qualified and experienced legal representative), then they can be considered to be legally binding documents that are enforceable by the court.

The agreement can be reviewed and amended, but remember that both parties have to agree to the changes.

What’s the next move?

If you are cohabiting already or if you are thinking about moving in together without getting married or having a civil partnership then talk to an experienced family lawyer who can help you both create a fair and effective cohabitation agreement. They will be able to set the agreement out in the form of a deed that is signed by both of you freely and without being coerced or forced in any way.

Remember too that it will need to be updated and amended if significant changes happen in your life, such as the birth of children or in the case of large inheritances, serious or long-term health issues, or redundancy. Your family law expert will be able to advise you when changes may be necessary and how to make them. Get in touch with the family team at Linder Myers today for more information.

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