Cohabitation | Family law
Pippa Allsop
Posted on 7 Aug 2017

Cohabitation – myths, merits and miseries

It is estimated that there are some 3.3m couples – 6.6m people – who live together but are not married. Cohabitation has become commonplace for couples starting their lives together, even if it is only for a period before marriage, and it is certainly the fastest growing type of family in the country.

Despite the popularity of this family arrangement, research shows that there is a much greater chance of a relationship outside marriage breaking down. Over half of those in such a relationship believe that there is such a thing as 'common-law marriage', and that belief is even higher among younger people – those most likely to cohabit in this way. Such a belief, unfortunately, means that’s there is a misunderstanding of the rights each person has if the relationship breaks down.

The myth of 'common-law marriage'

Those who continue to believe in the legal concept of 'common-law marriage' imagine that they will be protected in the same way as married couples are on divorce. Such a belief is entirely inaccurate and can and does lead to serious consequences when it comes to resolving the many financial and other issues that arise when a cohabiting relationship ends.

A bill to change the current law, and to give cohabiting couples more legal rights when a relationship breaks down, was reintroduced to Parliament after the 2017 general election. However, with so much Parliamentary time now being spent on deliberations concerning the departure of the country from the European Union, it is very unlikely that the bill will become law, at least in this Parliament.

Living together provides no guarantee of rights

The current law is very clear. Even partners who have lived together for many years, perhaps 10, 20 or even 30, do not acquire the automatic right to a share of the property and assets acquired during the relationship unless they are joint legal owners or the parties have specifically agreed that there should be sharing. This contrasts sharply with the position of spouses who, on the breakdown of a marriage, are automatically entitled to a share of the finances built up during the marriage.

Many people in cohabiting relationships will of course trust their partner to be fair in terms of each party getting back their financial contribution in the event of a breakdown of their relationship. The reality, which family lawyers see all the time, is that there can be no guarantee that feelings of mutual respect and obligation by each partner towards the other will continue after the relationship has broken down.

Coming to an agreement or going to court

There can be stark differences of recollection as to what was agreed about ownership. One of the parties may say, “I know the house is legally in your name but you agreed that if I paid half the mortgage, I would receive half the value of the property”. The other might say, “I agreed no such thing. This was my house before we got together and, although you paid part of the mortgage that was to cover the costs of you living here”.

In cases like that, if there is nothing in writing and if it really does prove impossible for an agreement to be reached, then the party who is not a legal owner of the property has the unenviable choice of either abandoning the claim or taking the case to court. As with any litigation, there is inevitably a degree of uncertainty about the outcome, which is decided by a judge who can only rely on the evidence available. Sometimes that evidence is not at all clear and is usually simply the word of one against the other.

A living together agreement or declaration of trust

Many of the problems that arise in this situation can be avoided if the parties make a formal agreement about how property acquired during their relationship is to be dealt with in the event the relationship breaks down.

Depending upon what is, or is likely to be, involved, this does not necessarily have to be a very complicated document. A solicitor can prepare a declaration of trust or a cohabitation agreement at a relatively modest cost. Provided both parties have been straightforward at the time the agreement is made, it should be upheld in any future disagreement. This in turn will give peace of mind and clarity and will help to avoid disagreement at that very difficult time when a relationship ends.

Take advice

It may not sound very romantic to talk about such matters at the time when the parties are starting what they hope will be a lifetime together. However, the reality is that many people who cohabit find themselves in a very difficult, sometimes even desperate, position when the relationship breaks down.

Our experienced Family team is experienced at  handling such situations with tact and fairness. As is usually the case, getting sound legal advice at the outset can help to avoid real problems in the future.

For more information or some preliminary confidential advice please contact Pippa Allsop, Associate in our Family Team, on +44(0)1392 687747 or email pippa.allsop@michelmores.com