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What is a common law partner?

Do cohabitees’ have rights?

There is a widely held belief that couples who live together for a long period of time acquire rights in family law to financial support in the event of their separation. This concept is commonly referred to as the common law spouse – the idea that despite no legal marriage the departing party will be treated by the courts as if they were married to their former cohabitee.

However currently, there are no “cohabitees’ rights” akin to financial remedy claims following divorce.

But, claims can arise between cohabiting parties where one makes a contribution to the other’s property (or an unequal contribution to their joint property) and that contribution is not reflected by the property ownership.

The current law on cohabitation rights

This is an area of law where the courts interpret events during the course of the relationship to determine what was intended and whether someone is entitled to an enhanced share in the property in the interests of fairness. Evidence often involves a forensic analysis of contributions over years of cohabitation and tends to come down to one party’s account against the others. Legal fees and the risks associated with court proceedings can therefore be high.

The future law on cohabitation claims

There is draft legislation which would provide a legal ability for a former cohabitee to bring a claim against the other for financial support on the breakdown of the relationship, similar to matrimonial law. This law has not received approval and is not yet in force but could be in the future.

If the law is changed then a former cohabitee could claim against their ex-partner on separation for financial support including maintenance and security of housing, regardless of their own financial contributions during the relationship.

As the proposed legislation is currently drafted it would be possible, subject to criteria set out in the law, to opt-out of any such future claim by entering into cohabitation agreement to that effect.

It is also likely that the court will retain an ability to determine whether the agreement was fair in the circumstances at the time of the parties’ separation.  As we have seen with prenuptial agreements, it is anticipated that such agreements which are freely entered into will in many cases be highly influential or will determine the outcome.  In any event, an agreement before any change in the law serves as clear evidence of the parties’ intentions restricting the ability to raise a claim under TLATA.

Contact our family law team

If you have a query or would like to discuss your own circumstances, call us now on 0800 422 0123 or contact us online.

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