— Sofia Lagergren is a solicitor at McKinnells in Lincoln, specialising in all aspects of family law. She regularly deals with issues concerning contact with and residence of children, divorce, civil partnership and financial issues following the breakdown of relationships.
Cohabitation is now almost as common as marriage. The social stigma attached to cohabitation (they are ‘living in sin’ – look away!) has long gone. Sadly, however, the law has not caught up with this reality.
As a family solicitor I am often meeting clients who need advice after their relationship breaks down. More frequently now, the couples are not married or have not entered into a civil partnership. Equally frequently, the woman (it’s usually the woman who raises this point) assumes that if she has lived with her partner for more than six months then she has become a ‘common law wife’ and is entitled to make a claim against her ex’s property.
So is this true? Well, actually no. It’s just an urban myth with no basis in reality. I do know however, that it is one that is often peddled by ‘Billy’ down the pub who does not let any lack of any legal qualification stop him giving advice to anyone who buys him a drink.
The law makes a clear distinction between the rights of married couples and those in civil partnerships on the one hand, and couples who live together without any such formality on the other.
The existence of a marriage or civil partnership does create property rights, which can then be enforced if the relationship breaks down. Who owned what before the marriage or civil partnership becomes pretty irrelevant. The Court will decide the division of a property by looking at the value of all assets and then dividing them fairly between them.
No such rules apply if a cohabitating couple breaks up. There, the division of assets will simply be based on who has legal title to those assets. Generally, the one who owns the property keeps it and the one who doesn’t own it gets a nice cardboard box to either pack their possessions into, or to sleep in depending on circumstances.
There are exceptions, such as where one of the parties has spent money improving the property belonging to the other, or where there are children. However, these rights come from trust law, which is complex and can be difficult and expensive to enforce, especially for someone living in a cardboard box.
Now, as I see the aftermath of these cases, I do feel it would be very helpful to couples to be aware of these differences beforehand. I accept that in a romantic relationship none of us want to be practical. None of us want to think about the relationship breaking down. But, failure to do so will often lead to disastrous financial consequences.
I would urge all couples to think about these practicalities. These days, most people have heard of pre-nuptial agreements and more and more are using them. They should also consider cohabitation agreements. Think about it – If you make a will it does not mean that you are going to die immediately afterwards. Similarly, just because you make a pre-nuptial agreement or a cohabitation agreement does not mean that the relationship is doomed to fail. It simply means that if it does go wrong, then you limit the scope for future acrimony and dispute.