Unmarried couples who are living together do not have the same rights as married couples or couples in a civil partnership. Contrary to popular belief, there is no concept of a 'common law marriage'. The law does not give unmarried couples the same rights upon the breakdown of a relationship as married couples, and the Court does not have the same wide discretion to make financial orders to meet a person’s needs, regardless of how long they have been living together. That’s why our experienced team of lawyers is here to offer you advice on cohabitation and assistance with any challenges you may face.
Cohabitation Agreements
Before deciding to live together, you may wish to consider entering into an agreement called a 'cohabitation agreement' or a 'living together agreement'. This is an agreement you and your partner can enter into setting out your intentions and agreements as to how financial matters are to be dealt with in the event that the relationship breaks down. Cohabitation agreements are legally binding contracts provided they are drafted and executed properly, which is why it is essential to take legal advice before an agreement is prepared.
Our team of cohabitation specialists are experienced in drafting these agreements and can act for you in drafting and negotiating the document. You might want to consider, for example, how will the house be owned, what might happen to the house if you separate, how will any joint bank accounts and savings be divided, how to protect any personal assets or inheritances, and how you can look after your children’s financial interests.
If you decide to then marry, you can choose to either revise the agreement or allow it to come to an end. An alternative you may also wish to consider is a prenuptial agreement.
The breakdown of a relationship where a couple is not married or part of a registered civil partnership is no less complicated and is sometimes more so in light of the law that is applied. Our team of cohabitation lawyers can advise you about the legal options available to you upon a relationship breakdown, including how any jointly owned property is to be dealt with and how any children are to be provided for in the future.
For further information please contact one of the team.
Frequently asked questions on cohabitation:
Q If I cohabit, does this enable the other party to petition for divorce?
Until April 2022 there is only one ground for divorce which is that the marriage has broken down irretrievably. “Irretrievable breakdown” is evidenced by proving one of five facts and if you have not lived separate and apart for over two years, the only facts that can apply are adultery and behaviour. If you are living with someone else this does not in itself prove adultery. The strict legal definition of adultery is sexual intercourse between a man and woman. It can therefore be hard to prove without video camera evidence or a child, but even the presence of a child without DNA evidence may not be conclusive. As such, if you are living with someone else, it is more likely that your ex will petition on the basis of behaviour and cite the fact that you have deprived them of love and affection and are choosing to live with a new partner as a reason. If your marriage has broken down to the point that you are living with someone else, then it would not normally make sense to delay the divorce so my advice would be to avoid defended proceedings and agree some behaviour examples that are acceptable to you, or to agree that you will admit adultery on the basis that your new partner is not named, so not a party to the divorce proceedings. Being the respondent to a behaviour or adultery petition does not in itself impact on the financial settlement, although the costs of the actual divorce may be claimed. If you and your ex-spouse agree to deal with the divorce paperwork yourself (rather than paying solicitors to do so) using the online Government portal (https://www.gov.uk/apply-for-divorce) the only cost will be a £550 court fee, which could be paid from a joint account or you could agree to contribute towards it equally, particularly if you both acknowledge some fault in respect of the marriage breakdown.
Q Is it better to wait to live with a new partner until the divorce is finalized?
As explained above, the fact that you are intending to cohabit is also relevant, so as such it will not impact on the financial settlement as to whether you are already or are intending to divorce. If however your ex has taken the issue of the new relationship badly, then it may be better to wait a period of time before setting up home with someone new, particularly if the children are struggling to come to terms with the end of their parents’ marriage.
Q Why should my ex object if I cohabit after the divorce?
Statistically you are both likely to cohabit following your divorce. With human nature being the way it is, it can cause increased feelings of resentment, jealousy, and even self-loathing if your ex forms a new stable relationship before you do. It is therefore sensible to be sympathetic if your ex is struggling with your new relationship and do think about how you would feel in his or her position. Think about how you would feel seeing your children spending time with your ex and a new partner. It often helps to agree ground rules, including how long a new relationship needs to last before the children are introduced, whether the children will ever go into the bedroom and find mum or dad in bed with someone else, and with young children whether a new partner will be excluded from parental roles like bath-time activities and changing clothes. There are no rights or wrongs to these questions, but if you and your ex can agree and be consistent, it may avoid resentment and burdening your children with being caught in the middle of issues unnecessarily.
Finally, if you are struggling as a result of your own or your ex’s cohabitation it would be worth involving a mediator, relationship counsellor or family therapist early on to help the two of you to navigate, in particular, the co-parenting issues that arise from cohabitation.
