Cohabitation / Living Together

No, the rights relating to the division of the finances are not the same. There is no such thing as a “common law marriage” or “common law spouse” in England and Wales. This is a popular misconception. You could be living with your partner for many years and your rights would not be the same as a couple who is married for a shorter period. That said, it does not mean that cohabiting couples have absolutely no rights or remedies available to them in the event that their relationship breaks down. However, the types of remedies available are limited and slightly different, which is why there have been arguments amongst many family practitioners that the law is “unfair” and in need of urgent reform.

If you are living with your partner and you have children or capital (e.g. property) together please contact our solicitors as they will be able to explore the income and capital options that are available to you.

Even if the property that you are living in is in the name of your partner you may still be able to make a claim under the law of trusts if, for example:

• You made a financial contribution towards the purchase of the property and you are able to prove it; or
• There was an express agreement or understanding or discussions between you and your partner concerning how the property was to be held, or if promises were made to you in relation to the property during your relationship.

If you have children, you may have a potential claim under the Children Act for a home for your child whilst they are a minor.

If you think that any of the above applies to you, or if you have any other questions, please contact us.

In terms of the arrangements for your children, the law is broadly the same as that for married couples. You can agree with the arrangements for your children by negotiation through solicitors, or directly with your partner, or with the help of mediation, or by using the collaborative process. The Court will only become involved if asked to do so by either parent or another interested third party.

Cohabitation agreements are agreements that are used to record the intentions of people that chose to live together, most commonly couples. The agreements are set out in the form of a deed and can record matters such as:

• Factual information about the parties, any children and the reasons for entering into the agreement;
• The legal and equitable ownership of real property (e.g. a house), or personal property (e.g. furniture, cars, expensive items such as jewellery, watches, art collections, etc);
• Who is going to be living at the property and how the household expenses are going to be met;
• What will happen to any gifts made during and after cohabitation (including any gifts from family members);
• Financial support between the parties whilst they are cohabiting and after cohabitation;
• Financial support for any children should the cohabitation come to an end;
• Wills – whether the provisions of an existing Will need to be reconsidered, or in the absence of a Will whether one is required, in view of the terms of the agreement;
• Provisions for the termination of the agreement (e.g. the death or bankruptcy of a party, by further agreement, or by subsequent marriage or civil partnership);
• How any disputes are to be resolved should cohabitation come to an end (e.g. mediation, arbitration)

By entering into a cohabitation agreement your intentions in terms of the finances will be expressly noted and you will maintain a level of control over how the family finances are regulated. You may also feel at ease as you will have an idea as to how the finances are going to be dealt with during your relationship, and more importantly, in the event that your relationship breaks down and your cohabitation comes to an end.

If you are a couple that is about to move in together, or are already living together, and would like to record your intentions and any arrangements in an agreement, please contact us.

In terms of enforceability, there can be no guarantee that a cohabitation agreement will be upheld or enforced by the Court at the time your cohabitation comes to an end. However, if the agreement is drafted properly without fraud, mistake or misrepresentation, and each party has provided financial disclosure and has had the benefit of independent legal advice without any undue pressure or duress, then challenging the agreement may prove difficult.

You and your partner can enter into a separation agreement also known as a ‘Cohabitation Deed of Separation’. That agreement will set out the financial arrangements following the end of your cohabitation. It will include provisions relating to capital and any financial support for you or any children. As with cohabitation agreements above, the Court is not bound by such agreements. Weight can be given to the agreement if it has been constructed properly (i.e. each party having provided financial disclosure, each party having separate independent legal advice and there being no undue pressure or duress).