Controversial Court Battle Highlights Need For Clarity For Cohabiting Couples

Lawyer Says Supreme Court Could Help ‘Pave The Way’ To Dispelling Myths


A leading family lawyer has today said that a controversial divorce battle highlights the need to provide clarity for thousands of unmarried couples living together across the city in order to prevent hundreds of costly break-ups.

Irwin Mitchell’s Alison Hawes said the age old myth that cohabiting couples have the same rights as those who have tied the knot has caused confusion in the past and that the landmark case at the Supreme Court in London last month highlighted the need for legal clarity once and for all.

The judgment for the case, which relates to the rights of Leonard Kernott and Patricia Jones to a £245,000 Essex house where Ms Jones has lived with their two children, paying the mortgage independently after the pair split in 1993, is to be handed down in the coming weeks.

Bought by the couple in 1985 for £30,000, the County Court ruled that Mr Kernott was entitled to 10% of the homes value. A decision later upheld by the country’s High Court before being overturned by the Court of Appeal who ordered a 50:50 split in the ongoing legal saga.

Now, 18 years after the couple broke up the Supreme Court is charged with deciding once and for all who gets what. A landmark ruling Alison says highlights the needs to dispel decades of uncertainty for unmarried couples.

She said: “It’s 2011 and cohabitation is no longer a taboo subject. The number of people choosing to live together without getting married is on the up, with non-married woman living with their partners increasing from 11% to 32% between 1979 and 2009. So it’s quite astonishing that there is nothing in place to determine the rights of couples who break up after a long term relationship, as opposed to a marriage.

“During a divorce who gets what is based on the needs of the individuals involved, especially the children. But time after time I am contacted by cohabiting couples who have split and are unsure about their rights, and confused about their responsibilities; which can often prove to be very costly and lead to unnecessary heartache at what is already a very difficult time.

“This really is the first high profile legal battle of its kind and I hope it will pave the way for vast improvements in the system by demonstrate the need to provide clarity and peace of mind for those who choose to live together, without tying the knot, once and for all.”

Often contacted by distressed couples following a break-up expert Alison says the most common myths include:

  • Cohabiting couples are in a ‘common law’ marriage and therefore have the same rights as married couples
  • A partner who pays half the mortgage is automatically entitled to half the property

And whilst she says the decision at the Supreme Court will certainly help dispel such myths she urges unmarried couples to consider their situation carefully, and consider getting advice.

“Whilst it’s true that cohabiting couples do not have the same rights as married couples, and may never have, there are things you can do to protect yourself and your loved ones” she said.

“A ‘Living Together Agreement’ may work for some couples; it’s a simple and inexpensive legal document that can help with the day to day running of the house, but will also come in useful if the relationship breaks down. That way all the difficult discussions have already taken place, such as how the house should be shared, if it is to be sold or which party should move out if things don’t work out.


MYTH: Once you have moved in with your partner, you have a common law marriage with legal rights.

FACT: There is no such thing as a common law marriage and hasn’t been since 1753.

MYTH: I’m paying half the mortgage so I am legally entitled to a fair proportion of the property.

FACT: If the property is in joint names, the starting point is that you both own equal shares, regardless of the contributions you have made.  It is often difficult to establish a claim where the property is in the sole name of one person and the other person  tries to prove that they have an interest, for example because they have paid for home improvements or paid a percentage of the mortgage.

MYTH: It’s very difficult to protect your interests without getting married.

FACT: This is not true.  All unmarried couples should consider entering into a ‘Living Together Agreement’ before they move in together.  This is a simple and inexpensive legal document.

An agreement not only helps towards establishing who pays for the day to day running of the house but it also comes into effect if the relationship breaks down. The agreement can provide for the way in which the house should be shared, if it is to be sold or which party should move out if things don’t work out.

MYTH: My partner will be fine if I die; they will still be able to live in the house.

FACT: If you are not married, there is absolutely no provision automatically made for your partner if you die.  If you are living with your partner, it is vital that you make a will otherwise your partner could be forced to sell the family home and have no financial support.