Common Law Husband / Wife – Living Together
There is no such thing as a Common Law Wife or Common Law Husband in English Law. Couples who chose to live together without getting married do so without the benefit of matrimonial legislation and there is no notion of fairness or reasonableness built into the law.
Cohabitation – Unmarried Couple’s Rights
The rules that apply to determine the division of their assets when cohabiting couples separate are the same rules that would apply between two strangers happening to live under the same roof. This includes same sex couples who chose not to register their relationship in a Civil Partnership.
The Myths – Cohabitation Law in England and Wales
- Cohabiting couples living together for a period of time acquire the same rights as married couples – they do not.
- A Cohabitee can claim maintenance from his/her partner if the relationship breaks down – the cannot (no matter how long they have lived together)
- A Cohabiting partner’s name is not on the mortgage but he/she can claim an interest in the property because he/she has paid the utility and food bills for years and has decorated the house and paid for the carpets – he/she cannot (such payments are irrelevant)
- A Cohabitee will automatically inherit the estate if his/her partner dies, so a will is unnecessary – they will not
- Unmarried fathers have the same rights towards their children that unmarried mothers have – frequently they do not
Cohabitation Agreements / Living Together Agreements
There is no specific legislation relating to cohabitation and therefore a Cohabitation Agreement will be governed by the law of contract. Both parties must have legal advice and supply full and frank disclosure of their finances. Cohabitation Agreements have yet to be fully tested in Court, but they provide useful evidence of a common intention.
If they are confined to matters dealing with property and money and certain conditions are met they are more likely to be held as binding. A Cohabitation Agreement should be in the form of a deed, in order to show consideration and the intention to create legal relations.
What to include in a cohabitation agreement
Cohabitation Agreements exist because couples chose not to get married but they wish to record how their assets will be divided upon death or separation. They can record what assets were brought to the relationship and what contributions the couple intend to make.
Things to include:
- Ownership of individual assets, such as cars
- Mortgage contributions
- Payment of household bills
- Bank accounts, whether joint, single, or both
- Ownership of joint property, whether joint tenants or tenants in common
- Life insurance and nomination of death in service benefits
- Gifts and Inheritances
- Powers of Attorney
- Mutual wills
- Review and termination
A Cohabitation Agreement should be confined to financial matters and not include details of domestic life.
Both parents remain responsible for maintaining their children, whether or not the father has parental responsibility. The parent with care can apply to the Child Support Agency for an assessment, and collection, of the monies due from the absent parent.
The Court retains Jurisdiction in limited circumstances, for example, the payment of school fees, or if the absent parent’s net income exceeds £2000 a week.
Financial Provision for Children
It is also possible to make an application under Schedule 1 of the Children Act 1989 for financial provision for a child, for example, a lump sum or property transfer order. There is also a facility to make an application for a periodic payments order, but the Court’s Jurisdiction is ousted by the Child Support Agency, save in exceptional circumstances, such as the non resident parent being habitually resident abroad.
Advice on Splitting Up
The current UK Law does not offer the same protection for unmarried cohabitation as it does for married couples. Upon separation the division of assets can be legally complicated if the ownership of property, and details of the couple’s financial and property affairs, have not been properly recorded.
Sound Legal Advice
In these complex cases legal advice is needed on a range of issues including, property, wills and children. Sensible, in-depth legal advice is required.
If you are embarking on a new relationship and wish to formalise your cohabitation in a Cohabitation Agreement we can advise on the most appropriate clauses to suit your individual circumstances.