Marriage v Cohabiting

Family Law Partner Fiona Read explains the laws governing cohabitation.

One of the biggest myths in English law is the concept of the "common law husband and wife". It is still a popular belief encouraged by the media that if you live together, 'common law' will protect you should you separate because of, perhaps relationship breakdown or death. The truth is couples who are not married have no automatic rights and many are left in a vulnerable position.

A stark and recent example occurred when Mr. Tinnion, a member of the SAS, was killed during conflict in Sierra Leone, leaving his former partner and their two children without any security - either in accommodation or through provision of a pension. This was due to the fact that a "common law wife" was not recognised by the SAS as having any legal rights.

The results of a recent survey show that one in six people cohabit and well over 50% live together before marriage. A large proportion of those living together may buy property or have children together and/or provide for each other financially. To ensure that these arrangements are secure and safe and to avoid future misunderstanding, a couple hoping to live together should try and be specific about their plans and record them formally.

Moving in together
A couple buying a property need to decide whose name the property will be registered in. If it is to be jointly owned then they will need to decide whether to own it as 'joint tenants' or 'tenants in common'. If they decide on joint tenancy and one party dies, then their share will automatically pass to the other party. If on the other hand they decide on a 'tenants in common' agreement, the deceased's share will fall to their estate and pass according to their Will.

If the property is to be solely owned by one of the couple it is crucial that you clarify whether the other party should have a financial interest in it if sold.

Once these basic matters are addressed the intentions need to be recorded in a Declaration of Trust which can be drawn up by a solicitor. The declaration can also set out a variety of other factors, including each person's financial contributions towards outgoings, sharing of the mortgage, shares in the property and the timing of a future sale or offers to buy the other party out.

If one person in a couple were to move into the other's property then both parties need to decide what financial interest if any, the person moving in should have, and what each persons contribution towards the outgoings of the property amounts to. It will also need to decided whether the contributions are to be treated as rent only. These intentions then need to be recorded in a Declaration of Trust and/or lease/tenancy agreement.

If a couple in a long term relationship want to provide security for the other following death or sickness it is important that each party has a Will drawn up, bearing in mind that a common law husband or wife is not recognised under the Intestacy Rules. Furthermore, each should make a Power of Attorney in the case of long term illness. They should also nominate, where possible, the other partner as a beneficiary of life assurance policies, Death in Service benefits and pensions.

If no specific arrangements have been put in place and a couple decides to separate, it is important to take legal advice from a specialist family lawyer sooner rather than later. There are numerous technical and practical difficulties in proving past intentions between a couple and lack of clarity can be very costly to both. It is worthwhile employing a skilled negotiator to try and reach a reasonable settlement.

What next
The government is being put under pressure to review the law due to the increasing number of people living together and the recognition afforded to cohabiting couples living in other countries. Abroad couples are dealt with in one of two main ways; they are required to enter into an agreement or "register" their partnership or they are given automatic rights, which take effect if there is no agreement.

In England, the Law Commission, (the government's body for recommending changes in the law) has not been able to devise a scheme to quantify rights in a shared household that could apply to everyone. They continue to recommend that the best form of protection is to draw up Declarations of Trust. Lord Lister recommends a form of registration to couples, offering rights and benefits. The Solicitors Family Law Association and the Law Society argue that it is not enough to persuade people to enter into agreements and instead propose an automatic scheme that would provide some rights after a period of two years or if children are involved.

There is still no certainty that any of the above proposals will become law but until the law is changed the only available protection for couples is to be specific about their plans and record them formally in legal documents - however unromantic it may seem.


Fiona Read is a Partner in Russell-Cooke's Family department and specialises in divorce, financial settlements and mediation.
T: 020 8394 6324
Email: readf@russell-cooke.co.uk

This article first appeared in the March edition of Time and Leisure magazine.