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'Common law marriage' myth needs addressing

View profile for Mike Devlin
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A recent survey of Members of Parliament has revealed that 69% of parliamentarians agree there is a mistaken belief in the existence of 'common law marriage' among their constituents. Steve Kirwan, who leads Resolution's work on cohabitation, said: "This poll of MPs confirms the findings of a public survey in 2008, in which 51% of respondents believed, incorrectly, that cohabitants had the same rights as married couples. And yet the current situation for people who live together in England and Wales, more often than not, creates injustice and hardship”

Research conducted by the Office for National Statistics has revealed that the number of cohabiting couples has almost doubled from 1.5m to 2.9m over a period of 16 years. However, virtually nothing has changed in how the law treats cohabiting couples and their property if they separate.

When married couples or civil partners break up both parties have a legal right to maintenance and their share of assets, including property and inherited property. Cohabiting couples have no such rights, regardless of the number of years they have been together and whether they have children.

One way of avoiding these disputes and expensive legal costs is to enter into a cohabitation agreement or as recently coined a “living together agreement”.

So what is a cohabitation agreement?

A cohabitation agreement is a legal contract formed between cohabiting couples that determines what happens to their assets in the case of a separation such as who owns what and in what proportion. It will also document how you will split your property, its contents, personal belongings, savings and other assets. It can also cover;

  • How each of you will contribute to rent, mortgage and household bills?
  • How you will deal with debts?
  • What would happen to joint bank accounts or property such as a car that you have purchased during the relationship?
  • How you will support any children you may have?

Is it legally binding?

Provided both parties have been honest about finances and assets and have entered into full and frank disclosure, obtained legal advice regarding the effect of the agreement and there is no undue influence it is likely that a Court would enforce a properly prepared agreement as a legal contract. In the event of a dispute the Court will certainly take into account the cohabitation agreement and will be in a position to place considerable weight upon that agreement provided it has been properly prepared.

Whatever your cohabiting situation it is clear that spending a little money now can save you the uncertainty, stress and expensive legal costs in the future.