There is no such thing as a ‘common law’ marriage. The law does not currently allow unmarried partners on separation to make financial claims in the same way as a married partner can. The only rights which cohabiting partners have relate to ownership of property and financial claims on behalf of any children of the family.
When cohabitees separate they potentially face the same painful experiences that a married couple face. A cohabiting couple have very often built up a life together over a long period of time. Therefore in the event of a separation there will be various issues to address. Broadly speaking, these issues may concern any children, financial provision for the children and the redistribution of finances and any assets between the individuals themselves.
Under Schedule 1 of the Children Act 1989, unmarried parents can make an application for financial provision for their dependent children, dealing with housing, capital and maintenance. The claims are very different to those in divorce proceedings. The Courts will look first at the best interests of a child and will look at the needs of a child and of the carers of the child. Often this can result in a transfer of a property to a carer until a child reaches the age of 18 or ceases full time education with the property then being sold and the proceeds divided between the two former cohabitees. The financial positions of the parents and their and the child’s financial needs will be important considerations.
In terms of the ownership of and interest in property where cohabitees or former cohabitees are not married, the Court looks at the laws of Land and Trust. The Court would look at the joint common intention of ownership of the property was, often determined by whose name the property is in but factors such as agreements, financial contributions towards the property or the general circumstances can also show what the common intention was to be.
There are no laws for cohabitees to receive shares of pensions, lump sum payments or maintenance from their former partners except where the lump sums or maintenance are for the benefit of the child.
If you are involved in a dispute with a former partner to whom you were not married then we can assist you in resolving these issues.
Because unmarried couples have fewer legal rights than married couples, many clients may benefit from a cohabitation agreement. It can give a couple the peace of mind that each person will be treated fairly and can help avoid conflict if they decide to separate. This is an agreement entered into by the cohabitants that sets out their intentions in relation to property and any other assets they own either jointly or individually and what should happen if the relationship breaks down.
We often advise and prepare agreements for clients who want an agreement before they move in together or if their circumstances are changing, for example if they are having children or obtaining a mortgage.
It is important to know what can be included in a cohabitation agreement as well as your legal rights to decide whether a cohabitation agreement is right for you.
A carefully considered agreement can help to prevent post-separation disagreements and unnecessary litigation over a number of critical issues.
We can advise clients as well as carefully agreements after taking detailed instructions which will allow us to tailor the agreement to meet your individual needs and circumstances. At Harper & Odell we can advise you on the issues you should consider, where you stand legally and how a court would view your arrangements. We provide a full and personalised service to make drawing up an agreement simpler.
If your considering moving in with your partner and need advice about cohabitation agreements we can help you take the next steps to protect your interests.
Is a Cohabitation Agreement legally binding?
This kind of agreement is not legally binding on its own, but a court will usually follow the instructions and provisions it includes as long as the agreement is properly drafted, with both parties receiving independent legal advice and is fair to both parties.
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