Prevention is better than cure

As approximately 2 million unmarried cohabiting couples wait with bated breath to see whether the Law Commission will propose providing them with similar rights to those of divorcing couples when they split, this article looks at what can be done now to protect unmarried couples in the event of a break up of their relationship.

Although Ministers have indicated a wish to see a change in the law, the reality is that it is unlikely that any change will be in place until 2008 (or later) as there is no definite slot for the introduction of any new legislation. Accordingly as there is no such thing as “common law marriage” with the current law offering cohabiting partners with no financial rights if their relationship breaks down (regardless of how long they have lived together), more and more couples are now deciding to regulate their own legal and financial affairs by entering into a Cohabitation Contract, sometimes also called a Living-Together Agreement. The main advantages of a Cohabitation Contract are that it provides a couple with certainty and clarity as to their commitment in the relationship within a formal legal framework. In most cases a Cohabitation Contract can be prepared at relatively little cost for approximately £500.

Although a Court can challenge the enforceability of a Cohabitation Contract, there are certain steps that can be taken to minimize a challenge against enforceability. These are as follows:

  • Ensure that both parties have independent legal advice;
  • Ensure that full and frank disclosure has taken place;
  • It is helpful to include a certificate in the Contract signed by each solicitor confirming that they have advised their client of the effect of the Contract and that the parties intend to create legal relations;
  • Nothing should be included in the Contract that could be contrary to public policy;
  • The Cohabitation Contract should be in the form of a Deed.

Matters that can be included in a Cohabitation Contract include:

  • Housing and other property;
  • Financial support after separation for both a former partner and children;
  • Joint bank accounts and credit cards;
  • Cars;
  • Other personal property.

As the “common law” marriage myth is as reliable as sightings of the Loch Ness monster, it is clear that the only way to definitely protect a couple’s legal rights is by prevention in the form of a Cohabitation Contract rather than waiting for a legal cure to be found.

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