A recent survey carried out found that 46% of people questioned believed that there was a concept of "common law marriage" in English law – which means, after living together for a certain period, a cohabiting couple gains rights equal to those of a married couple. Sadly, this is not the case. There is no ability to make a claim for financial provision against an unmarried partner on breakdown of the relationship (apart from making separate claims related to property or children law).
I say sadly, because when these relationships end due to separation there can be unintended and more importantly unknown consequences.
The Labour party included within its manifesto published in June 2024 a commitment to strengthen the rights and protections available in particular to women in cohabiting couples.
We have also found that some believe they are married but their relationship is tantamount to cohabitation. This is either because people may learn their religious marriage is a non-qualifying ceremony under the law of England and Wales or couples may have chosen to avoid a legally binding ceremony believing that a religious/cultural ceremony suffices, without understanding the legal consequences of this decision.
In view of the current position, cohabiting couples should consider entering into a cohabitation agreement. In the absence of a cohabitation agreement, at least one of the parties (if not both) could be at risk on separation. For example, if one party owns property in their sole name, they may be susceptible to a legal claim by their partner for a share in the property if, for example, their partner has contributed to the mortgage or renovations. A cohabitation agreement is a legal document that outlines the intentions of both parties regarding property and financial arrangements between them, both during cohabitation and in the event of relationship breakdown (and/or death of one of the parties).
Cohabitation agreements can cover the following:
- How the mortgage and other household expenses shall be paid (by whom and in what proportions);
- Ownership of joint and individually owned property;
- What should happen if one party wants to sell and the other does not;
- The arrangements for one party to buy out the other;
- The living arrangements and financial support to be given to the parties' children, if cohabitation ends.
They can also document, in the event of relationship breakdown, whether provision should be made for the financially weaker party similar to spousal and child maintenance for married couples.
Cohabitation agreements will be enforceable provided they have been negotiated with the benefit of legal advice, are executed as deeds and are fair. It is also advisable that the agreement be negotiated and signed in advance of the parties moving in together or essentially, not at a time where one of the parties could later argue they were in a vulnerable position.
In addition to entering into a cohabitation agreement (and declaration of trust, if required) cohabiting couples should also contemplate putting in place a Will, to overcome the challenges that may arise if one party dies intestate.