There continues to be an ongoing myth that “common law marriage” exists and if you have cohabited with your partner for an extended period of time, then you automatically have the same rights as a married couple (or a couple in a civil partnership). This is not the case.
To date, the law has not yet changed to recognise cohabiting couples under the Matrimonial Causes Act 1973 or Civil Partnership Act 2004, although Resolution continue their campaign for this change.
However, cohabiting couples are not always worried about meeting their needs at the end of a relationship nor protecting what they are taking into the relationship. Most people quite naturally do not want to think about the relationship ever breaking down. We have seen during lockdown that couples have moved in together sooner than they may have done in their relationship in order to form a bubble and continue to see one another.
It is common knowledge that parties can enter into a Pre-Nuptial Agreement to protect their position prior to marriage; however, it is not so commonly known that cohabiting parties can also attempt to protect their position without being engaged or have a wedding pending.
Cohabiting couples can enter into a Cohabitation Agreement at any stage of their relationship. This Cohabitation Agreement, although not binding upon a family court, is a contract between the parties, clearly setting out their financial intentions for the relationship and the future. Such a document also makes the parties’ positions clear when considering property under the Trust of Land and Appointment of Trustees Act 1996. You should always consider how you may want to own a property together and whether you want to protect any initial contributions made to the deposit. This should be done by way of owning the property as tenants in common and putting a declaration of trust in place as well as having a Cohabitation Agreement. You can also agree and discuss as to whether any contributions to rent or mortgage payments or even renovations should give rise to any new or additional interest in the property.
Before you seek legal advice in connection with a Cohabitation Agreement, it is always good to discuss this with your partner first. Your partner will need to sign and approve the agreement (as well as take their own legal advice) and so, it is better to be honest and upfront from the get-go. You have mutual intentions in terms of wanting the relationship to succeed as well as wanting to protect your own financial position should the worst happen.
For more information and advice, contact the family team on firstname.lastname@example.org or 0800 413 463
Head of the Private Law Family Department