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A Common Myth about Cohabiting Couples

View profile for Julie Bailey
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As a family law specialist at one of Lincoln’s largest law firms I meet a lot of couples who are living together but not married and describe themselves as common law husband and wife.

Worryingly they believe that because they have been cohabiting for several years they have the same legal rights as married couples if they split up. Unfortunately however this is not the case.

Common law marriage is in fact a myth and does not exist. Despite an increasing number of people choosing to live together and have children outside of marriage, couples living together are often left without any legal protection if their relationship breaks down.

For instance, if your partner dies and they haven’t made a will, you won’t automatically inherit anything from them, including the family home if it’s in their name or if you own it jointly as ‘tenants in common’.

In addition, if you split up from your partner they don’t have to pay you any maintenance for your own benefit, even if you’ve given up work to look after the children or your home (although they will still have to pay child support for their children).

According to the Office for National Statistics, the number of cohabiting couples has almost doubled since 1996 from 1.5 million to 2.9 million in 2012. This has led to bodies such as Resolution, an organisation of lawyers that promotes a conciliatory approach to solving family problems, campaigning for the law to be changed.

Although there is a Cohabitation Rights Bill 2014-15 currently making its way through the House of Lords it has to pass through several stages before becoming an Act (law) and has to be approved in the same form by both the House of Lords and the House Commons, which could take some time.

So what can couples do to protect themselves? Although no-one wants to think about the possibility of splitting up or the death of a partner, particularly in the early stages of a relationship, it could save emotional and financial heartache in the future if you plan now.

To provide some certainty unmarried couples can enter into a Cohabitation Agreement which is a contractual agreement setting out how they are going to live together and how property will be divided if they separate.

A variety of issues can be agreed and contained in the agreement, including how much they will each contribute to the household, who owns the property, how new assets purchased by them will be owned and how property will be divided if the couple separate. Provisions can also be included where the couple has children, such as how they will be looked after and who will look after them. However, any agreement relating to children will be open to review by the court.

If the couple have entered into a Cohabitation Agreement and later separate they have effectively already decided matters such as how their assets will be divided and how the children will be cared for. This avoids the uncertainty of taking the matter to court and it can make separation less painful and less expensive.

In the event that one of the couple no longer accepts what the agreement says and the matter is taken to court, the agreement will be taken into consideration. The court is not bound by the agreement, but if the parties received independent legal advice when they entered into the agreement and the terms are fair then the court is less likely to make an order in different terms.

There are many benefits to drawing up a Cohabitation Agreement and it should not be seen as tempting fate or confirmation that the relationship is likely to fail. As well as offering more legal protection, it could also strengthen a relationship by making both parties feel more secure.