We often hear reference to 'common law marriage' or 'common law man and wife' but this is a myth - the law does not recognise the rights of cohabiting couples when a relationship breaks down, in the same way that married couples.
What are the common issues?
The most common financial worry for couples upon separation, whether married or not, is what will happen to the family home. When a marriage breaks down, it is open to either party to apply to the Court under the Matrimonial Causes Act 1973 for a Financial Order, which can include an Order that the family home is sold or transferred into the sole name of one party. This is irrespective of whose name the property is in. Unfortunately, the same does not apply when parties who are not married separate.
Surely the family home is half mine?
If the family home is in one party’s name only, even if the other party has lived there for many years and has contributed to the running of the property they are not automatically entitled to a share of this as would be the case if they were married. In addition, upon divorce the Court can make orders such as a Pension Sharing Order, so that pension rights can be shared between parties or an Order that one party pays spousal maintenance to the other, so that the receiving party has enough income to meet their needs. These orders cannot be made in respect of unmarried couples.
How can the risks be minimised?
It can be seen from the above that at present, cohabiting couples face a number of risks in the event of a relationship breakdown compared to married couples.
One way for cohabiting couples to ensure that they have peace of mind is to have a Cohabitation Agreement drawn up. A Cohabitation Agreement can record what the parties agree will happen in the event of their relationship breaking down. While Cohabitation Agreements are not legally binding, they provide evidence of what the couple intended should happen in the event of a separation if a dispute should later arise.
If you would like further advice in relation to Cohabitation Agreements please contact Waldrons Solicitors specialist family lawyers.
