Sometimes people refer to couples that have been living together, and possibly bringing up children together, over a long period as ‘common law’ husbands and wives. There is, in fact, no such legal status. The law refers to this sort of relationship as cohabitation.
When a couple are married and the relationship ends, matrimonial legislation allows courts to deal with the financial arrangements – property and maintenance. Where a couple are living together (cohabiting) and the relationship ends, there is no legal provision for maintenance. When looking at the division of the couple’s property, there is no notion of fairness or reasonableness built into the law.
Sometimes property is jointly owned and the deeds are in both the partners’ names. If this is not the case, being awarded a share in any property depends, essentially, on being able to establish ownership, based either on a financial contribution or on a common intention. For example, if a woman lives with her partner for say 20 years and brings up their children in his house, she cannot expect any maintenance for herself. Nor will she share in the property if she has not paid for it either directly or, for example, by contributing to the mortgage, unless she can prove it was agreed otherwise. It does not matter that the reason she did not contribute financially was that she could not work because she had to be at home with the children. Even if she did make some financial contribution, establishing ownership is notoriously difficult as the law in this area is something of a minefield.
Cohabitation agreements have yet to be fully tested in court so no one can be sure what attitude the courts will take to them. They can make sense in that they encourage people to think clearly, about what they want to happen if the relationship ends. They might also be useful evidence of a common intention to share property.
As agreements are legal documents, both people should seek the advice of a solicitor independently. It must also be clear that both individuals intend the agreement to be binding on them. The fact that both have received legal advice will help show this.
The agreement should only deal with financial and property matters. Any reference to other living arrangements or any terms that appear vague or uncertain may make the agreement unenforceable.