Cohabitation

There is a popular myth that for those couples who live together but do not actually get married gain legal rights against each other because they are the common law wife or husband. This is not the case and common law marriage was actually abolished more than two hundred years ago.

The reality for cohabitants as the law stands is that the courts are very limited in what they can assist with if the couple split up. If an amicable separation is not possible the court can only deal with issues regarding disputes in respect of property and financial provision for children under the Children Act 1989. Parties can still go through the Child Support Agency for maintenance of a child, but the court cannot for example order maintenance for one party, or order the payment of a lump sum.

Given recent economic and social changes which have meant that more and more couples are deciding to live together and not get married there has been considerable pressure for the law to change and offer greater rights and protection for cohabitants. At present however this form of living arrangement is relatively insecure when compared to the rights of the married couple.

Cohabitation –A Practical Guide

There are certain key issues that all cohabiting couples need to consider at the outset of their relationship:-

• Death is not something any of us wish to think about but there is a very important distinction between cohabitants and their married counterparts. Unlike a surviving husband or wife, the cohabitee of a person who dies without having made a will, has no automatic rights to inherit anything from the deceased.
• The family home will usually be the most important asset in financial and practical terms. But what happens to that asset once the parties separate very much depends on the legal ownership of the property. Again contrast the situation with the married couple. In a marriage just because a house is in the sole name of the husband, does not bar the wife from having a financial claim over it because it is considered as a matrimonial asset. With cohabitees if the property is in the sole name of one party the non-owning party usually has no claim to a share of the property. Also if the property is owned by both parties do they own it as joint tenants or tenants in common. As joint tenants the usual starting point will be that the property is owned equally regardless of financial contribution As tenants in common paperwork drawn up at the time such as a deed of trust will dictate who own what if the parties separate or where one party dies.
• The rules are different if there are children. Although the parties are treated as unrelated individuals towards one another the law acknowledges that both have a combined responsibility for any child. Sometimes a party can make a claim for maintenance, lump sum or property provision on behalf of the child.
•  Protection from the law may come in the form of a cohabitation agreement drawn up between parties. This is a legally binding contract, relatively cheap to draw up and as long as both parties receive sound independent legal advice at the time of its creation, the contract may be enforced by the court on separation.

Aegis Law is registered with the Solicitors Regulation Authority, registration number 388682.

The Principal of Aegis Law is Gina Simpson, who was granted the professional title of solicitor in the United Kingdom

Aegis Law is subject to the Solicitors’ Code of Conduct, which can be viewed at http://www.sra.org.uk/solicitors/code-of-conduct.page

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