Co-Habitation
When you are planning to move in with your partner the last thing you want to contemplate is the possibility of the relationship not working out. However, whilst co-habiting couples may have the lifestyle of a married couple, in the eyes of the law they are very different. Quite simply, the myth about common-law marriage giving both partner’s equal rights to the home or assets does not stand up in court when there is a break-up. Current legislation does little to protect partners living together and this can be utterly devastating for one, or both, parties.
Couples who live together but are not married have less legal protection than married couples.
A “common law wife” (which is not a legal term) has no entitlement to maintenance payments from her partner. Nor does she acquire automatic rights regarding property or other assets, regardless of the length of the relationship. It should also be borne in mind that a cohabitant does not automatically inherit upon the other party’s death because such a person will not be next of kin. Co-habitants cannot give authority for medical treatment to an ailing partner.
If a property is owned in the sole name of one party this may prevent the other party from making an application regarding the property, unless it can be established that there was a common intention (by virtue of the conduct of the parties) that both parties should have an interest in the property.
Ideally prospective cohabitants should sign a cohabitation agreement setting out the terms on which they are to live together. If a cohabitation agreement has not been agreed and the relationship breaks down the only way to resolve disputes over property is to apply down the relevant legal principles. The court also has extensive powers to make appropriate Orders regarding the children of a cohabitant relationship.
This is a complex area of law where, as ever, it is essential that you instruct a solicitor with the appropriate expertise. Furthermore if you are contemplating living together you should reflect very carefully on the implications of this and take appropriate legal advice so as to ensure that your position is safeguarded.
Pre-Nuptial Agreements
Immediately before a wedding there is one issue that is probably far from your mind: the possibility of the failure of the relationship. The fact is, however, that approximately one in three marriages ends in divorce.
As a consequence, a pre-nuptial agreement that is signed by the two people about to be married, setting out what they have agreed about the sharing of income and assets in the event of a divorce or separation, is a sensible course of action. After all, just like a Will, you may have inherited assets that you want to keep within your family, or one of you might have built up a portfolio of property that you both agree should not be regarded as a shared asset.
A pre-nuptial agreement sets out the basis on which income and assets are to be shared in the event of a subsequent divorce, and whilst courts have historically been reluctant to enforce them, there is evidence of a shift in attitude. A recent case upheld the contents of a pre-nuptial agreement and the court expressed a view that such agreements should be honoured or, at the very least, should be deemed highly influential in subsequent divorce proceedings. Click here to read how the Court views the validity of a Pre-Nuptial Agreement.
Such agreements should certainly be considered by those contemplating marriage in later years or in circumstances where there are unlikely to be any children.
As you would expect from our expert family law team, we have experience of preparing such documents and advising people about their use, aims and potential pitfalls. We expect pre-nuptial agreements to become more popular, and they are perhaps most relevant to those embarking upon marriage or remarriage later in life.
As always, we will answer any questions you have on this subject clearly and informatively, but with sensitivity to your position.
