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Cohabitation – the misconceptions

During my time practising as a family solicitor, there has always been a misconception that couples who have been living together for six months are classed as ‘common law husband and wife’ and are protected by the same laws, and have the same rights, as those who are married or in a civil partnership. 

cohabitationA recent report by the National Centre for Social Research found that 48% of cohabiting couples in England and Wales believed this to be the case.

However, the reality is that there is no such thing as a common law marriage and the law in England and Wales doesn’t recognise cohabiting couples as being in a legal relationship.  As the number of couples living together is on the increase, more and more people are leaving themselves open to significant risks, including being left homeless, even where they had regarded the property they lived in as their home throughout the relationship.

Cohabitation agreements set out what couples expect to happen in the event of the breakdown of their relationship if they are not married. They can also set out how the relationship is expected to work, for example, who pays what towards the mortgage and household bills and responsibilities for any children.

Unfortunately, whilst couples often don’t want to discuss entering into such an agreement in the early stages of their relationship, leaving it until later often means they are forgotten and important issues such as inheritance and property ownership are left unaddressed.

Making a will

If you are living together, but not married, your partner will not inherit any of your estate if you die without having made a will (if you die intestate).  Your estate will be distributed according to very strict rules of intestacy.  The only way you can ensure that you partner inherits is to make a will. You can find out all about making a will on our website.

Property

If you are buying property to live in together but are not married, it’s important that you know exactly how the property is owned – either as joint tenants (where each person owns 50% irrespective of how much they contributed to the purchase) or as tenants in common (where owners can own as much of the property as they wish as the share does not have to be equal).  You can also set up a declaration of trust, which will confirm who actually owns what percentage of a property, and what they will get in the event of a sale, irrespective of what the Land Registry entry says.  In the event of a relationship breakdown where there is no trust, protracted and costly litigation can arise if you are trying to establish ownership.

cohabitationThe government has no plans to change current legislation in the UK regarding cohabitees, so it looks like any reforms are still a long way off.   Until there is any change, cohabiting couples are advised to put agreements in place now in order to take away the uncertainty of what might happen to their family and finances should they separate.

For specialist advice contact one of our family or private client experts now and arrange a free of charge appointment in which we can discuss your case.

By Nicola Cancellara, family law solicitor

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