Contrary to popular belief, there is no legal concept of "common law" spouse and the law relating to cohabiting couples is outdated. The law still does not recognise a living-together relationship outside of marriage or civil partnership.
How does this affect your rights if you were to ever break up?
Rights of a cohabitee
Because of this, when cohabiting couples separate it is not uncommon for one of them to be left with little or nothing, or to be faced with complex and expensive legal proceedings. This can be particularly difficult for the financially weaker partner in the relationship who may have given up a career to look after the children.
If the family home is owned in the name of only one person then regardless of the length of the relationship or the fact that children may be involved, the other person may not be able to assert a claim against the family home even if he or she has made financial contributions to the household. To try and assert a claim can be legally complex, expensive and risky.
Conversely, where the family home is owned in joint names then (unless there is a written legal agreement saying otherwise) then the couple will own the property in equal shares regardless of what they each contributed before and after the purchase.
An unfair legal system
The unfair results which can occur under the present law were particularly felt by Pamela Curran. She had been in a relationship with her former partner for over 30 years; they had a home and a business. When the relationship broke down Ms Curran was left homeless and had to stay with friends. She had trusted her former partner to ensure that if they ever split up she would receive her "fair share". Both the County Court and the Appeal Court had no choice but to apply the outdated law which meant that Ms Curran walked away with nothing.
How a Cohabitation Agreement can help
The only way to avoid this uncertainty is for couples to enter into a cohabitation agreement. A cohabitation agreement sets out who owns what and allows couples to say how they will divide their assets should the relationship break down. The agreement can also deal with how any children will be supported, what happens to debts, how the day to day finances are split, life insurance etc. It can be as simple or as complex as each individual couple requires.
Although it may seem a bit unromantic, being realistic when your relationship becomes serious can save a lot of heartache, stress and expense in the future. This can be when you first move in together, invest financially in any other way, or when children enter the relationship. Often, when a relationship breaks down people are hurt and angry meaning that they are not always able to see a fair way forward.
As long as the agreement is drafted by a specialist Family solicitor and both parties receive legal advice then the agreement represents a contract between them which is likely to be upheld by a court.
The Family Law Team are experienced in cohibitation issues including drafting Cohabitation Agreements and would be happy to discuss your options and your rights. For more information please contact one of our specialist solicitors.
This article was written by Louise Eady, Senior Associate in the Family Law Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of January 2020.