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The common law myth.
What are the rights of unmarried couples?

This article appeared in the March 2011 edition of Profile magazine.

One of the pervading myths of English law that I come across regularly in my job as a family lawyer is that of the ‘common law’ wife or husband.

One in six couples in England live togethercohabitation roghts without getting married, many of them believing that they have the same rights as married couples.

Long term partners often consider themselves to be ‘common law’ husband and wife after living together for a number of years, but the term ‘common law’ has no legal standing in this country in this situation.

The brutal truth is, that if you separate from your partner, the law will not treat you as equal in the way that it would a married couple. The law will treat you as separate individuals. This could have serious implications in terms of financial and property division.

Property

A woman may have no rights over the property in which she lives if the deeds are held in her partner’s sole name and he has always paid the mortgage. So, for example, a woman who has given up work to look after the children could be severely disadvantaged come the separation.

Similarly, a person would have no automatic legal right to a property which is held in their partner’s sole name, even if they had contributed financially to the home, either by means of deposit, mortgage payments or paying for improvements.

If you were to separate under these circumstances, you would need to try to negotiate a settlement with your ex-partner. Court proceedings may need to be issued for you to establish a proper share of the property, although this can be complex and requires specialist legal advice.

Establishing your rights to a share of the property may be possible if you can show that you had an agreement with your partner about how assets would be divided on separation (this may be in writing or a verbal promise, if it can be proven), or if you can provide financial records indicating that you made a significant contribution to the property.

Cohabitation Agreements

One way of avoiding potential disputes later on is to enter into a Cohabitation Agreement with your partner. A Cohabitation Agreement is effectively a contract which you both sign which sets out how assets will be divided in the event of you separating, similar to a pre-nuptial agreement for marrying couples. In it, you can state who owns what and, for assets which are jointly owned, you can state how they should be divided on separation and in what proportion. For a Cohabitation Agreement to be effective, it is important to get it drawn up by an experienced family solicitor.

As you can see, cohabiting can be a potential legal minefield in the event of a separation, particularly where close financial ties exist, or when you have children. Taking the right steps early on, such as making a Cohabitation Agreement, can avoid problems later. However, if you do find yourself in any of the above situations, , contact me on 0114 2766166 or via www.norriewaite.co.uk

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