For many years, the phrase “common law marriage” has been used to describe unmarried couples who live together. However, a “common law marriage” is myth; there is no such thing as a “common law husband and wife”. In reality, a cohabitee does not have the same legal rights and financial claims as those that are married or in a civil partnership, regardless of the amount of years they have been living together.
If co-habitees decide to separate and there is a dispute regarding the division of the former family home, this is governed by property law and more specifically, the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). The starting point is to assess how the property is owned. If the property is jointly-owned, the starting position is that each party has a 50% interest. Conversely, if a property is in the sole name of one party, the presumption is that that person owns the entirety of the property. It is therefore easy to see how disputes may arise. If one party wishes to establish an interest in the property solely owned by the other or that they have a greater interest in a jointly owned property, the onus is on that person to prove this. They should seek legal advice as to what must be demonstrated to establish a beneficial interest in the property. However, this area of law is very complex and therefore expert legal advice is essential.
To prevent disputes arising, parties can enter into a Cohabitation Agreement which will formalise the parties’ intentions in relation to the property; the living arrangements and how the property should be divided upon separation. The agreement can also include provisions for any other assets that the parties own and can record details of the parties’ financial responsibilities. The agreement therefore gives parties the flexibility to set out their personal arrangements in writing. As the agreement is essentially a contract between the parties, it is crucial that legal advice is sought to ensure that the agreement is correctly drafted.
If the above resonates with you and you would like further advice in relation to entering into a Cohabitation Agreement or dealing with a cohabitation dispute, the Family Department at Paul Robinson Solicitors offer a fixed fee initial consultation for you to discuss matter and to help you understand all the options available to you. We are experts in this area and we can offer all the advice and guidance you require. If you would like to book an appointment at either our Westcliff, Benfleet, Billericay or Stratford offices, please contact the Family Department on 01702 338388 or 01277 500123.