Whilst marriage remains a popular activity and indeed a growing business for those involved in making the "Big Day" special there are many couples who share their lives together without ever entering into a wedding contract. Little else differs in their approach to life however and their union will be punctuated by the usual milestones of buying a home together having children sharing the good and the bad times and dividing the labour to suit their skills and the family's needs.

The distinguishing feature however is that Co-habitees do not have the same support from our legal system as married couples and where relationships breakdown the absence of a marriage certificate can create enormous difficulties and leave one of the couple extremely vulnerable.

For many a year there has grown the myth of the "Common Law" wife or husband and relying on that myth folk often think their future is protected by the acquisition of rights over the others assets. How very wrong they are to assume that! There is and never has been a concept such as this.

There are very few ways to acquire an interest in another persons assets ( save under the ties of matrimony) and all are based on constructive or resulting trusts where the claimant must show either an injection of capital or actions to their detriment arising from an express or implied benefit to accrue to them in the future.

Picture the scenario where Juliet moves into Romeo's 16th Century cottage finds herself expecting twins and gives up her high powered job as editor in chief of the Daily Ramble to make a home for the family. Romeo owns the house in his sole name. Juliet cares for the children and for Romeo and is supported by Romeo. Six years down the line Romeo has an affair with his secretary and wants Juliet out. What are her rights?

As the only person with parental Responsibility for the twins she can take them with her and Romeo would have to apply to the court if he thought they ought to live with him.

Romeo will have to pay 15% of his net income to Juliet for the children but he has no obligation to provide support for Juliet.

What about the house? On the face of it Juliet has no right to occupy and no interest in it's equity having made no contribution to the reduction of the mortgage or its improvement.

However she might be able to argue a resulting trust or constructive trust if she can show that throughout their time together Romeo had either expressly or impliedly stated that in exchange for her staying at home and caring for the home and family she would have security for life in the home or any other which they might buy. He is not likely at this stage to agree with what she claims so expensive litigation could ensue. Pending that litigation settling she may have a right to remain in occupation. The litigation will be fraught with difficulties where there is no concrete evidence.

To a great extent the cost of litigation could be avoided if when cupids arrow strikes the head takes control for long enough for the couple to take advice on how to deal with their assets and what would happen in the event of a separation. Any purchase by an unmarried couple of land and houses should be coupled with a declaration of trust to avoid the unseemly arguments which can happen on relationship breakdown. At the risk of seeming a bit clinical about what is hopefully a romantic time for both it is wise to put aside the rose tinted glasses to ensure the future is properly catered for.

Cohabitation agreements pre nuptial agreements and trusts are all areas of advice we can offer and should you need further advice please contact any member of our Family team.

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