It is no secret that more and more couples are living together before they are married (myself included!)
There is a common misconception that you become a “common law spouse” when you are cohabiting with your partner. This misconception appears to not just be by couples themselves. When I was recently renewing my car insurance, when asked what my relationship status was, the option I had to select was “Common Law Partnered/Cohabiting”.
There is no such thing as a “common law spouse” or “ common law partner” and in reality all that you are is simply a cohabiting couple.
When you get married, you are protected by certain rights by virtue of your marriage vows to one another. The term “common law spouse” suggests that you may have rights similar to those of a married couple. The common belief is that you become “common law spouses” once you have lived together for 7 years. There is nothing in our legal system that protects cohabiting couples in the same way as married couples.
The rules are slightly different if you have a child together, as the child has certain rights until they are 18, but for the purposes of this blog I am going to focus on cohabiting couples with no children.
So, if there is nothing in the legal system to protect cohabiting couples, what can you do?
A cohabitation agreement, in a similar way to a prenuptial agreement, can set out your agreed intentions as to what happens if your relationship breaks down in the future. They are not legally binding, but if you have each had independent legal advice, have signed the document as a Deed in the presence of a witness and have each entered into the document freely (nobody is pressuring anyone to sign) then they are likely to be upheld by a judge in the future.
The most advantageous thing about a cohabitation agreement is that it can determine what happens to your property, capital and income if your relationship comes to an end.
I have set out some examples of when a cohabitation agreement is really important below, although I consider it a worthwhile investment for any cohabiting couple. Dealing with it when your relationship is happy is much cheaper and easier than trying to deal with matters at the end of your relationship, when emotions are already high.
Without a cohabitation agreement, the Courts will determine the issue based on the Trust of Land and Appointment of Trustees Act (TLATA), which can only deal with ownership of property, and is very matter of fact. To complicate matters further, it is also worth mentioning that getting engaged can impact the claims that can be made in the future under antiquated legislation called the Married Women’s Property Act 1882.
Disputes relating to the ownership of property are dealt with by the civil courts, not family courts and so their powers are limited and they are focused on principles of trust law, not overarching fairness which the family court can apply. These types of court proceedings are costly and complicated to argue because the court will potentially have to examine the intention of the parties during their relationship. If you lose, you can end up being responsible for paying your ex’s legal costs.
Therefore, if a property is being purchased in one person’s sole name, a cohabitation agreement is essential. It will set out whether the non-owner party is going to contribute to the utility bills and/or mortgage, and whether they will obtain an interest in the property or not from their contributions, or whether they are simply paying a ‘rent’ to live in the property. It can also cover what happens to jointly purchased furniture within the property if the relationship comes to an end.
When property is solely owned, this is a frequent issue when parties separate, as the non-owning partner may feel that they would like their contributions repaid. However, this can all be dealt with by a cohabitation agreement to ensure that both parties agree and understand what will happen if their relationship comes to an end.
Likewise, if your property is being purchased in unequal shares, a cohabitation agreement can record how the utility bills and/or mortgage payments will be split, and how the sale proceeds will be divided if the property is ever sold.
Even if your property is being bought and owned equally, and all utilities and mortgage payments are being paid for equally, then a cohabitation agreement can also be beneficial, to determine what would happen with furniture, fixtures and fittings, income and other capital (for example, savings and investments) if your relationship breaks down
If you would like more information on cohabitation agreements, or you would like to discuss whether one is suitable for you, please contact me at [email protected].
Married and civil partnered couple families remain the most common family type, but this is a declining trend in the UK, as more people choose to live together before, or without, getting married.