The law of intended Living Together – Myths and Truths
It’s a commonly held belief that parties that live together for any significant length of time gain ‘rights’ against their partner and/or their partner’s property and assets. People often refer to ‘common law’ husband or wives when referring to couples living together.
The actual position is that, in law, there are no automatic rights which are gained by either party when a couple simply live together. Their position in terms of financial provision for the other is entirely different to that of a married couple, regardless of the length of time a couple may live together.
Where there are children from a relationship, there are usually ongoing maintenance obligations when the parents separate, regardless of whether the parents were married or not, and in some cases there may be sufficient assets to provide for some other financial provision for the children. However, it is more commonly the case that the main issue to be resolved in a case where couples have merely lived together is whether there is any jointly owned property and how that should be divided, or whether one of the parties has contributed sufficiently to property owned by the other to establish what is known as a beneficial interest, meaning that they have some claim to the property even if they are not named as an owner.
It can come as a shock to clients who have separated from their partner that they either have no rights against property or assets owned by the other or, where a property is owned in their sole name, that their partner may have accrued some rights in respect of that property. Such claims can often be difficult to determine, which can lead to Court applications and legal fees, which is not ideal for either party.
Arguments over property and other assets can be avoided if the intentions of the couple so far as property, assets, and general financialarrangements are concerned are set out clearly in a written agreement.
It may not be the most romantic thing to talk about with your partner when you are looking at setting up home together, but the agreement can save a good deal of argument and legal fees if the relationship were to break down in the future in showing what had been intended by the parties if there is a dispute.
It is not only couples who are looking at setting up home together who can enter into such an agreement. Even if a couple have been living together for any length of time, a living together or cohabitation agreement can be drawn up if both parties are happy to enter into it.
Such an agreement is not an order of the Court and a party cannot be prevented from making an application to the Court in relation to property if they so wish, but the agreement can establish the intention of the parties, which is often the crux of the argument and one of the main factors which a Court would take into consideration. If the intention is clearly set out in an agreement each party is aware of his or her position and where there is no dispute, there is no need for legal proceedings.
In summary, cohabitation/living together agreements, like pre-nuptial or post-nuptial agreements, are not officially recognised in English law, but are documents which, if drawn up correctly, a Court would take serious note of in the event that there was a dispute between the parties at a later date and, on that basis, are something which all couples living together or intending to live together, should consider.
by Melinda Smith from the Wisbech office