Common Law Rights - True or False?
One of the most common myths in English law is that there is such a thing as a “common-law marriage”. Many people believe that cohabiting couples have the same rights as married couples and that such rights can be acquired after living together for a number of years or if they have children together. This is simply not the case under the current legislation.
If a cohabiting couples relationship breaks down, the law treats them as two unrelated individuals. This means that on separation or death , no account is taken of the financial contribution or other contribution that they may have made during the relationship to determine what is fair. This could result in the financially vulnerable party being put in a difficult position leading to potential hardship and other such difficulties. The courts have no power to re-distribute the wealth of cohabiting couples on separation irrespective of how long they may have been together.
Cohabiting couples do have some rights if they jointly own property or can show that they acquired an interest in a property, but this is very much case and fact specific.
If a couple have a child together, it may be possible to apply for financial provision for the child. However, these types of claims are complicated and are often time consuming and expensive.
It is also important to remember that in the absence of a Will, a surviving partner has no automatic right to the deceased’s estate. If one cohabitee were to die without having made a Will, that person would be deemed to have died intestate and the estate would be distributed in accordance with the intestacy rules.
However, if on the death of one cohabitee, no provision or reasonable financial provision has been made for the surviving cohabitee, he or she may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975, but again, it is worth bearing in mind that cohabitees are not treated in the same way as spouses by the courts.
What is a Cohabitation Agreement?
If you live with your partner, or are considering moving in together, you may have thought about a cohabitation agreement. This is a written contract between two people who either live together or are intending to live together, which sets out what is to happen in the event they subsequently split up or if one of them were to die.
There is of course no legal obligation to have a cohabitation agreement, but it can be a useful tool to protect your finances and establish practical arrangements.
When considering a cohabitation agreement, you can discuss the financial aspects of your relationship and set them out clearly so both parties understand.
Why enter into a Cohabitation Agreement?
A cohabitation agreement can, if drafted correctly protect your financial interests and give you peace of mind in the knowledge that should your relationship come to an end, you will have certainty over what you walk away with. Your agreement may make provision for returning money or property to the person who brought it into the relationship, what should happen to a property you own or rent, who pays what for household bills, the apportionment of any loans or other such debts and how you wish to divide any other jointly owned property.
If you do not have a cohabitation agreement in place when you separate, you will have to try and agree who is to have what at a time that may already be stressful, challenging, and sensitive. It therefore makes sense to manage these aspects of your relationship whilst you remain on good terms and are looking forward to a life together.
Whilst many may feel that entering into a cohabitation agreement is in expectation that your relationship is going to fail, it is more like an insurance policy. Having such an agreement in place can allow you to move forward in your lives together with confidence and security.
If you would like further information about the contents of this article, contact Allen Bailey our family law solicitor on 01748 832431 or email us using enquiries@scottswright.com.