Cohabitation - Get It In Writing

By Paul Hunt - Family Solicitor, Kirwans 15 February 2013 at 11:11

A recent case has once again emphasised the invidious position in which unmarried partners may find themselves if their relationships breakdown if there are properties and assets involved.

Many people in this type of situation are in a completely false sense of security. Being involved in a relationship of whatever length is not enough to establish a claim over the other partner’s property. There is no automatic principle of sharing as there would be in the case of a divorce or civil partnership dissolution.

Essentially on separation cohabitees will keep whatever assets are already in their own names and anyone making a claim against the others property has the uphill battle of proving that it was a common intention that that property should in fact be held in trust for the benefit of both of them even though the legal ownership is with one person only.

Proving that intention can be very difficult. More often than not there may be casual and vague conversations, taking place many years ago, the contents or existence of which may be hotly disputed.

There is still the myth of the ‘common law husband and wife’ a myth which has no basis whatsoever in reality. Although there have been recommendations made by the law commission as to introducing a specific framework of law to deal with cohabitation, this is not likely to be taken up by a Government of any persuasion in the foreseeable future.

Each time this issue has any political prominence at all, there is usually a contrary argument that anyone who really wants to protect their rights should marry or enter a civil partnership and therefore any dispute would fall within the flexible framework of the divorce legislation. A person may choose not to marry but they cannot expect to have the same rights as a person who has made that choice.

This is not a view with which I find sympathy. There are increasing numbers of people who choose not to formalise their relationship but find themselves unexpectedly penalised if those relationships come to an end even when that separation may have been preceded by many years of living together and commitment including bringing up children and perhaps helping the other partner with a business.

This is still therefore a situation where prevention is better than cure, as the cure is often inadequate and expensive.

Family Law Solicitor Paul Hunt

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