Many cohabiting couples often assume that living together creates the same rights as marriage – the so-called “common law marriage”. If you are cohabiting with your spouse, you should be aware of your legal position so that you can protect yourself financially.

The concept of common law marriage (or “common law husband or common law wife”) has no legal validity in England and Wales. In reality, living with your partner does not give you any rights to one another’s property, no matter how long you live together. Likewise, if your partner dies, cohabiting does not entitle you to inherit property which could potentially leave the surviving spouse in catastrophic circumstances.

Raising awareness

Resolution, a leading family law organisation has been campaigning to help raise awareness of this very issue in order to dispel the myth of the common law marriage.

No power to divide assets

It is common knowledge that the courts have the power to implement an order during a divorce, and they can split the couple’s matrimonial assets as they see fit. However, this is very different when the couple are not married and are instead cohabiting. In this case, the courts have no power to redistribute the couple’s finances or property during the relationship breakdown. This also means, for couples who are not married, that they are often left to construct a case with the help of family lawyers using property, contract, and trust laws, which can often lead to messy and drawn out TOLATA proceedings.

What should a cohabiting couple consider in light of this?

We believe it is essential that cohabiting couples at least consider forming what is referred to as a Cohabitation Agreement.

Such an agreement can become contractually binding on both parties and it can set out what the couple would like to happen to their property interests, finances and other assets if the couple were to separate. As well as forming a Cohabitation Agreement, you may wish to consider taking additional steps, such as forming a Deed of Trust. A Deed of Trust can help the couple setting out the specific amounts that they have invested in their property.

Where can I find more advice about forming a Cohabitation Agreement?

Alun Jones Family Law is a specialist family law practice, with offices conveniently located within Cardiff City centre. We can help you form a Cohabitation Agreement or a Deed of Trust, as well as offering expert advice.