Cohabitees (3)

Property rights for unmarried couples are very different from those for married couples. People often refer to a “common law wife” (or husband) in this connection and there is a widespread misconception that after a certain period of time a “common law wife” acquires the same rights as an actual wife or civil partner. This is not the case. There can be complications in that there may be a dispute over who owns what or who contributed how much to a given purchase but, in principle, the answer is always the same: each is entitled to keep their own property. This may involve the sale of jointly owned property (which either can often insist upon) but the proceeds of sale will be divided according to strict property rights.

What is more, an unmarried couple not in a civil partnership can come to an agreement about what is to happen in the event of subsequent separation and, insofar as it affects property, such an agreement will be legally binding. Such an agreement made by a married couple could be ignored by a court in dividing the matrimonial assets but that is not the case where the couple is unmarried and outside a civil partnership. Indeed, that could be said to be one of the advantages of being a simple cohabitee because the jurisdiction of the courts to interfere with property rights is very much more restricted where the partners are unmarried and not in a civil partnership.

People often mention the possibility of “pre-nuptial agreements” which would regulate what would happen to the property of a married couple after divorce. These agreements are possible in other jurisdictions such as the United States and it is probably as a result of US influence on the media that so many people are aware of this but pre-nuptial agreements were not traditionally regarded as binding in England and Wales. The courts retain ultimate jurisdiction as to how to divide the matrimonial property after a divorce and they have not flinched in the past from ignoring such an agreement. They cannot do this where the agreement regulates property rights between an unmarried couple who are not in a civil partnership. Co habiting rights are different.

In the case where, say, a house is to be bought jointly by an unmarried couple it is sensible to enter into a written agreement as to who has contributed what and what is to happen if the parties later split up. This agreement about co-habiting rights can save a dispute and legal costs later and it is something which a solicitor can easily do. In the case of a joint house/flat purchase by cohabitees it is a matter of elementary prudence to make such an agreement and it is a lot easier to do at the outset than later when difficulties may have arisen. It is astonishing how many people do not do this and how many conveyancing lawyers do not draw it to the attention of joint purchasers.

There are a number of other issues which cohabitees may want to consider. For instance, they are not actually legally related in any way and so if either wants to benefit the other in the event of death it is usually sensible to make a will to that effect. If that is not done then the beneficiaries may well be the next of kin who were not expected to be beneficiaries at all. Similarly, there may be issues as to involvement in decisions on medical treatment etc because it must always be remembered that the partner of a cohabitee is not the next of kin.

There is another point worth mentioning. People often say that the law relating to cohabitees ought to be the same as that between married couples or those in a civil partnerships. Sometimes proposals are brought forward to legislate for that. There is a serious objection to this. As things currently stand in England and Wales a married couple or a couple in a civil partnership cannot opt out of the jurisdiction of the divorce courts. Prenuptial agreements in general have traditionally not worked and so in the case of divorce the courts have the last word in deciding who gets what. That is not the case between cohabitees where, essentially, each partner retains their own. What this means is that to marry or not to marry or to enter into a civil partnership or not is in effect the only choice that people have open to them if they wish to preserve their own property. If the rights of cohabitees were to be assimilated to those of married couples or those in civil partnerships then this basic freedom of choice would be removed.

Certain common problems tend to recur in the case of the breakdown of a relationship between cohabitees. Do please read on if you want to know more.