There is no such thing as a “common law spouse” which means that unmarried couples do not share the same legal rights as those who are wedlocked, yet almost two in three looking to buy a new house are unaware of the rules.
New research by law firm Shakespeare Martineau surveyed more than 500 first and second-time buyers who are planning to purchase a property within the next 12 months and it showed that women, in particular, are putting themselves at risk by not committing to making a cohabitee agreement with their partner before or after a house purchase.
Some highlights of the research show that:
- nearly 40% of women looking to buy a house incorrectly believe a common law spouse exists
- more than one in three are at risk by not having a cohabitee agreement
- 30% wrongly believe they will get a share in a partner’s property if they pay the bills
- more than half don’t realise a joint tenancy precedes a will – meaning children could lose out.
The study also showed that men are more likely to obtain legal advice or make a cohabitee agreement before moving in with their partner, which means that women could lose out on what is rightfully theirs simply from a lack of knowledge.
Helen Bowns, family partner at Shakespeare Martineau, said: “Choosing to live together before getting married or entering into a civil partnership is pretty much the norm in today’s society. Although it can provide a financially practical option, many couples fail to recognise the lack of protection of their assets if they separate.
“To avoid unwanted conflict further down the line, a cohabitation agreement should be the top priority for all unmarried couples planning to move in together. A living together agreement could clarify ownership details and who will pay what while they live in the property. It is more essential to have this agreement in place if the house is in one party’s name only or if children are involved, as protecting your wealth will provide security and help safeguard their future.
“Although this may be an uncomfortable thought, it is important to consider all eventualities and arrange legal protection if something was to go wrong. It is a bit like having car insurance – you hope you don’t have to use it, but it is there should the worst happen.
Too many of us believe in the rule of a common law spouse, with many more unsure of the difference in rights.
Helen said: “Regardless of what people read or hear, there is no such thing as a common law spouse. Unmarried couples who live together are merely cohabitees and do not have the same rights as married or civil partnered couples. Even if they have lived under the same roof for 50 years, the court could treat them in the same way as friends living together.
“Although this may be an uncomfortable thought, it is important to consider all eventualities and arrange legal protection if something was to go wrong.”
“In the event of a relationship breakdown, the less well-off party is at risk as they will not be able to make a claim for either maintenance, capital or pension provision. They can only claim their share of joint property and money, but anything held in the sole name of the other party is theirs to keep. The only way to get around this is to enter into a marriage or a civil partnership, or create a cohabitation agreement.
“Being unmarried or not entering into a civil partnership also means neither of you are entitled to receive each other’s assets on your respective deaths. If you want to benefit each other, you must prepare wills to state this.”
Be aware of the risks
“The biggest risk is that women are exposing themselves to potential future litigation. There is also a danger that they are making financial contributions towards a property, which will not be recognised, while being under the impression they will be.
“Even if verbal agreement was made, this would be very difficult to prove if there was a dispute in court. The courts will look for as much evidence as possible and having a cohabitee agreement that has been properly prepared and signed with them both having the benefit of legal advice is good evidence.
“In the long run, it will cost more to argue about it in litigation than to pay the costs of having an agreement in place. Until the law catches up with some of the modern ways of living, protecting your interests in the event of a relationship breakdown must be considered carefully.”