Can't Marry? Won't Marry?! - Is a Cohabitation Agreement right for you?

Resolution, the national community of family law professionals, are running their annual awareness week (25 to 29 November 2019) with this year’s focus being on the need for legal reform for cohabiting couples. They originally planned to gather in Parliament on 27 November to call on MPs to reform the law, but the forthcoming election put paid to that. Further information can be found at: Here at Goughs we wanted to join them in raising awareness of the issues faced by cohabiting couples.  

For a number of reasons, fewer of us are marrying our partners. The number of cohabiting couples across the UK has reached 3.3 million, the fastest growing family form. Although society has changed, unfortunately the law has not.

If you have been with your partner for 20 years and have children together, you must have similar entitlements to your married counterparts, right? Wrong! Two-thirds of cohabiting couples believe in the enduring myth of ‘common law marriage’ when dividing finances on relationship breakdown. But unfortunately this is all it is…a myth.  

If a property is jointly owned then, unless there is conclusive evidence to the contrary, you will each be entitled to a half share, regardless of who has contributed what. If a property is in one partner’s sole name, the other partner will have to rely on trust law in order to establish an interest in it. Success is very far from certain. Despite the judiciary attempting to distort the rules of trust law to try to achieve fairness,  it is completely unsuitable to the domestic context. And don’t get us started on the complex procedure, let alone the cost.

Of course it is possible for the property to be transferred into joint names, or the parties can enter into a deed of declaration of trust to set out their respective shares, but until the common law marriage myth is dispelled many people do not realise this until it’s too late.

Cohabitees cannot claim against assets in the sole name of the other party on separation, such as savings and pensions. Similarly, it is not possible for cohabitees to claim maintenance for themselves. Unlike married couples, the law treats cohabitees as two separate individuals.

The picture is slightly different where children are involved. One parent may be able to claim an interest in the family home or other assets on their child’s behalf, and child maintenance can be claimed by the parent with whom the child resides.

Thankfully, there is a much easier, safer and cheaper option: a Cohabitation Agreement. Cohabitation Agreements bridge the gap between cohabitation and marriage by setting out how assets should be divided on relationship breakdown. This can avoid costly litigation and enormous stress. It may appear awkward and difficult to discuss with your partner what would happen in the event of breakdown when everything is seemingly going swimmingly. However, it is infinitely easier than trying to agree matters following a difficult split.

As cohabitation is a social norm, it is disappointing to family lawyers that it is not a legal norm too, but thankfully we can help.

All individual circumstances differ, and to ensure you are in the best position possible you should first consult with a solicitor who specialises in this area of law. Whether you are seeking advice at the start of your relationship, during cohabitation, or following separation, Goughs can provide expert advice to assist you.

At Goughs we offer a free initial consultation with a member of our family law team at a time that suits you. We have six offices across Wiltshire -  in Calne, Chippenham, Corsham, Devizes, Melksham and Trowbridge, with a seventh opening in Chippenham in 2020. We look forward to working with you.