Other family matters

Cohabitation

As the institution of marriage declines and couples increasingly choose to live together, it s important to be aware that although co-habiting couples are often referred to as 'common law' husbands or wives, there is in fact no such legal status.

Should your relationship breakdown, as cohabitants, you cannot expect fairness from the law and there is no legal provision for maintenance. Instead you must rely on an inadequate legal framework, based on the complex principles of property law.

Cohabitation agreements have yet to be fully tested in court but they can encourage you to think clearly about what you want to happen if the relationship ends.

Currently, unless property is jointly owned and the deeds are in both the partners names, being awarded a share in any property depends on being able to establish ownership which is extremely difficult as the law in this area is something of a minefield.

As a member of Resolution, emeryjohnson supports the call for a new cohabitation law, separate from matrimonial legislation, which would define cohabitation as a 'personal relationship (other than a legal marriage) between two adults in which each provides personal or financial commitment and support for the material benefit of the other'.

Resolution recognises that, for a variety of reasons, couples may choose not to marry. While supporting marriage, Resolution believes that the law should be reformed to achieve fairness and protect vulnerable cohabitants.

The proposed new law should enable:

• the courts to take into account all the circumstances including the level and extent of the commitment between the couple with the presumption that, as far as possible, both people should be self-supporting.
• cohabitants to apply for financial relief where cohabitation has continued for a minimum period of two years if there are no children.
• the courts to make lump sum and property adjustment orders and award short-term financial support from the date of separation.

Resolution recommends that cohabitants should have the right to make an informed choice to 'opt-out' of this legal framework by means of a cohabitation contract.

Your emeryjohnson solicitor will offer advice on your legal status throughout your life with your partner and can ensure that any cohabitation agreement you make is enforcable.

In the meantime, a cohabitation agreement can encourage you to think clearly about what you want to happen if your relationship ends. It might also offer useful evidence of a common intention to share property when attempting to establish ownership.

Your emeryjohnson solicitor will be happy to help you draw up an agreement, covering financial and property matters, which your partner can take for independent legal advice before signing.

Any agreement will form a legal document so you should consult your emeryjohnson solicitor before signing any papers you may have drawn-up between yourselves or with the help of your partners solicitor.

The fact that you have each sought legal counsel before signing any document will demonstrate that you intend to be bound by the agreement.

You should be aware that currently a cohabitation agreement can cover only financial and property matters and if it is unclear or refers to other living arrangements, it may be unenforceable. Further, these agreements have not yet been fully tested in court and until they have, or until the law is changed in line with Resolutions recommendations, there is no indication of what attitude the courts will take to them.

Your emeryjohnson solicitor will be familiar with the latest court rulings and case histories and she will apply up to date thinking to advise you on the best course of action.