How can unmarried cohabiting couples sensibly protect themselves to avoid legal problems later?


Posted by James Davies, 16th January 2018
It’s easy to see the beginning of January as a little bit miserable: “divorce day”, dry January, dreadful weather and a return to work but there are lots of little pockets of joy to be found though.  Many happy couples get engaged over Christmas and many couples might decide to live together and buy their first home.

As a family lawyer, I often see how the enthusiastic dash for the home of a couple’s dreams can preclude thoughts about protecting yourselves if something, heaven forbid, should go awry with the relationship. I have young children and, as a consequence, much of my philosophy these days comes from their viewing. So, here goes. As Gru from Despicable Me 2 questions, “where is fun without rules?”

The rules

Cohabitation is a complex topic but while married couples have all sorts of legal rights and protections on relationship breakdown, unmarried families do not.  There is no such thing as a common law marriage, even for couples who have lived together for a long time, or who have children together (although there is some modest legal protection for the children).  While the courts are obliged to dispense fairness to both parties of a married couple, not so for an unmarried couple.  Instead they can expect an application of historic, inadequate principles of property law. So:

  • When you buy a property, enter into a declaration of trust to set out what your interests in a property will be if you split up, amongst other things.  Unless one of you has been defrauded, legally mistaken or entered into it under duress (all very difficult to show) it will represent the legal outcome;
  • Consider a cohabitation agreement.  These agreements can avoid difficulties by setting out how the bills are to be paid or what happens financially, for instance, if one of you takes time off work through illness or to have children.
  • Don’t think: “It’ll never to happen to me” or “If it goes wrong, he/she’ll do the right thing.”  My experience is that often the contrary is true.

We can help you to prepare something that will set each of your minds at rest for your financial future, and leave you to focus on the excitement of your time together.

For those amongst you who have been lucky enough to become engaged over Christmas, you might like to consider instead a prenuptial agreement, which we will look at in more detail in a future blog.

Sadly, some of you will already be in an unmarried relationship that is now breaking down.  If so then you should seek our specialist advice before you do or agree to do anything.

For further information please contact James Davies or another member of the Family team.

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