Tags: Children, Cohabitation, Collaborative Family Law
Did you know that there is no such thing as a common law marriage in England and Wales? Contrary to popular belief, unless you are legally married or have a registered legal partnership, there are no automatic legal rights or obligations to each other, including the division of financial assets if you separate or if one of you dies, this is regardless of how long you have cohabited with a partner.
Consequently, if you are in a cohabiting relationship, it is important to be aware of, and to think about, your legal position in relation to assets, as this might not be what you expect. For example, if you are not registered as an owner of the family home, you do not have any automatic right to a share of the equity, no matter how long you have lived there, and even if you have children together.
There are some situations where one cohabiting partner (or ex-partner) can make a claim against the other, in relation to interest in property or on behalf of children, however there are limits to both types of claim.
There are ways in which couples can protect themselves by considering how their respective interest in a property will be held. One (especially where you share a home) is to agree, in writing by way of a declaration of trust what shares of the property you each have, alternatively, couples can make provisions for how they will deal with assets by way of a cohabitation agreement, this can set out what each party has contributed and how assets will be divided in the event of a separation. It can include things such as arrangements for how quickly either party might have to move out of the family home, whether either would have the ‘first call’ on buying out their ex-partner, and how home contents would be split etc.
If this is not done, then claims in relation to property can be very expensive as if parties are unable to agree, the only option is to issue legal proceedings relying on TOLATA (Trusts of Land and Appointment of Trustees Act 1996) or by relying on property law and the principles of constructive trusts and proprietary estoppel to establish that a cohabitee has an interest in a property. These processes can be quite rigid and may not result in the outcome you would expect.
The Law Commission has acknowledged that with more couples choosing to cohabit, there should be changes to the law to protect cohabitees; however, as of yet, no legislation has been put in place to protect them, so it is important, if you do live with a partner but are not married, that you consider your legal position. No one expects their relationship to break down, but knowing where you would stand if it were to happen can help you to plan ahead – for instance, knowing what share of the house you would each be entitled to may be relevant in helping you decide what each of you will contribute towards the mortgage bills, what arrangements you will put in place if you have children etc.
At FDC Law, we offer a service to produce a cohabitation agreement, we can discuss with you the various factors that you wish to agree upon prior to cohabiting with your partner. This may include dealing with shared property, assets held prior to the relationship, how you will arrange your finances (bills, mortgage rent etc.), what arrangements you will make for children or pets, and what would happen in the event of future separation.
If you are about to start living with your partner, or if you are already together and want to clarify where you stand, or if you are in the process of separating from your partner, you may wish to contact us for a free half-hour appointment to discuss your options going forward. If you have any questions or wish to book a free session, please click on the name below to contact our Family Department.
Erica Newman Berry - Keynsham / Frome or call 0117 986 9141
Marjorie Taylor - Midsomer Norton or call 01761 417575
