Published on December 16, 2022

Is common law marriage a myth? Well, many people believe that ‘common law marriage’ is a legally binding entity. Sadly, it is just a myth, and the reason that’s sad is because many unmarried couples rely on it.

The truth is that unmarried couples who live together have few rights in relation to each other’s property, regardless of how long they’ve been cohabiting. If a couple in a marriage or civil partnership have a relationship breakdown, the courts will aim to divide the party’s assets ‘fairly’. This isn’t the case when an unmarried cohabiting couple separate. In this situation, the person who owns the property in their name will be entitled to it (subject to some limited situations where the other person could make a claim).

The truth is that unmarried couples who live together have few rights in relation to each other’s property, regardless of how long they’ve been cohabiting.

If you separate, and the property you share with your partner is not in your name, then you could find yourself homeless. This would be particularly devastating if you’ve been with your partner for many years and have children together. You could be left with very little.

Yet there is a solution.

A Cohabitation Agreement Can Give You Security

The solution is to make a cohabitation agreement, in case you ever separate. People often don’t think about what could happen to them if their relationship were to break down, until it’s too late. That’s why it’s a good idea for both of you to make a cohabitation agreement now, while you’re still enjoying a good relationship. Think of it as an insurance policy; it covers something you don’t want to happen, but means you’ll be protected.

A cohabitation agreement records what you and your cohabiting partner have agreed should happen if your relationship ends and you no longer want to live together. The agreement will be unique to you and your partner, but I suggest it should at least cover property ownership, finances and arrangements for any children from your relationship. Provided you both agree, you can include whatever matters to you – including who keeps the pets!

A cohabitation agreement records what you and your cohabiting partner have agreed should happen if your relationship ends and you no longer want to live together.

For the agreement to be legally binding, it’s important each of you has independent legal advice, in case the other person later alleges the agreement was made under duress.

Incidentally, you don’t have to be in a relationship with the person you are living with, to have a cohabitation agreement. If you’re simply sharing a house with someone, it’s still a practical safeguard.

Other Ways To Protect Your Future

Making a cohabitation agreement is not the only step you can take to ensure both you and your partner are protected if you separate. It’s worth thinking about a declaration of trust and your Wills; I’ll briefly explain why.

A declaration of trust concerns property ownership. It sets out who owns what and in what proportion, and can be very important if you and your partner are buying a property but not both contributing the same amount.

The reason each of you should make a Will is because the intestate rules (which apply when someone dies without a Will) don’t provide any right of inheritance for a cohabitee. So, if you want your estate, which includes your property, to pass to your partner on death, you need to specifically state this in your Will. And of course, your partner will need to do the same.

Happy Ever After

Cohabiting couples are often unaware they have fewer rights than their married counterparts. However, I hope this has shown you that there are safeguards you can put in place.

The lack of public awareness about the limited rights of cohabiting couples, and what can be done to provide peace of mind, led Resolution to spearhead a national campaign. During Cohabitation Awareness (27 November 2017 – 1 December 2017) some of my colleagues at Taylor Vinters wrote articles you might find interesting:

Postscript. Issues arising out of separation can often prove stressful for the couple and other family members. This article written by Dylan Watkins GP offers a useful overview for those who may be struggling. Signposting to additional support and relevant organisations can be found in this link

Catherine Bell is a contributor to ‘Separating With Children 101’, 3rd edition (Bath Publishing, 2023)

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The Early Days Of Separation

Humans are designed to cope with many onslaughts, but change continues to prove extremely challenging. How you manage the early days of separation or divorce has the potential to set the tone for the rest of the process.

When couples separate, they are often thrown into a period of uncertainty. Identities are changing from couple to single, from mum and dad together as a family unit to mum with children and dad with children. Depending on the circumstances and who decides to leave the family home, there are many questions that arise during the early days of separation. “Will we have to sell our home?” “I haven’t worked since we had children – how will we manage financially?” “What will our friends and family think?” “How much will divorce cost?”
“Will I cope on my own?” There seems to be so much to sort out both practically and emotionally and it comes at a time when at least one of you will be ‘all over the place’ emotionally due to the loss you are experiencing. This can make decision-making seem impossible. Who wants to agree the practicalities of legal issues and more importantly organise the children when they are devastated, angry and confused by loss? It can turn otherwise rational, clear-thinking mums and dads into what appears to be belligerent, stubborn, unreasonable people.

Take Your Time!

In those early days of separation or divorce, take your time if you can. Seek support from friends, family and professionals. Try not to make any big decisions too quickly.
Bear in mind that communication problems with your ex and all the pressures on family life you are now experiencing, like for many separating couples, will get better with time. It’s important to recognise that you and your ex will more than likely be in very different emotional places at the moment; different stress levels and anxieties will be making communication difficult. Taking the time to sometimes do nothing, to not react, give things a day or two, can prove very useful techniques.
What you have to remember is that if you have children, your ex is always going to be part of your life. That can be hard to take on board when you are feeling hurt and angry. If you can find a way to communicate with each other that focuses on the children, you will all benefit in the years to come.

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