To Marry or not to Marry?

Couples who live together but do not marry could have more protection under the law than married couples who sign a pre-nuptial agreement, says emeryjohnson.

While pre-nuptial agreements, or pre-nups as they are commonly known, are not binding in the courts, cohabitation agreements are legally binding. Couples who sign a cohabitation agreement could potentially be in a better legal position than their married counterparts should the relationship breakdown.

Emma Mitchell, Partner, at emeryjohnson says:

“While pre-nups have yet to fully recognised as binding in the courts the cohabitation agreement is recognised. There is a greater need for cohabiting couples to make these agreements as they do not have the same automatic rights that married couples have when the relationship breaks down. Contrary to what some people believe there is no such thing as a common law husband or wife.

“The reason cohabitation agreements are enforced by the courts is because there is no other legal protection for unmarried couples who live together and then separate. A well drafted cohabitation agreement could cover every eventuality so that a separation is fair in terms of dividing up the ownership of property and other assets.”

Emeryjohnson points out that while pre-nups are not yet legally binding, the courts are using them more frequently as a guide in separation cases.

Emma Mitchell adds: “There is a growing trend of reliance on pre-nups when married couples divorce, but should the terms of the agreement be disputed by either spouse, the courts cannot necessarily insist it is followed.

“Cohabiting couples and couples looking to be married should each seek legal advice from their solicitor when drafting these types of agreements. Often, there is more than a home that needs to be considered.

“Obtaining an agreement such as this is not the most romantic gesture and is often the last thing couples moving in together want to think about, but should anything go wrong in future the cost spent on a cohabitation agreement is likely to be a lot less than going to court to resolve any disputes.”

The Law Society’s Family Law Committee recently urged cohabiting couples, in the absence of legal rights, to write wills to ensure their partner does not go without should they pass away. Without one it is possible a person could end up with nothing from their partner’s estate.


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