Busting cohabitation myths across 6 jurisdictions
By Teresa Cullen, partner at Fladgate, 19 Apr 18
In the UK, many couples mistakenly believe that they acquire similar rights to a married couple after living with their partner after a fixed period of time has elapsed. In an attempt to bust cohabitation myths, Teresa Cullen, partner at international law firm Fladgate, looks at what rights unmarried couples have in several jurisdictions.
Does English law apply to cohabiting couples from another jurisdiction?
It is complicated if a couple is living in England but one or both are from a jurisdiction where cohabitants do have rights.
England will always apply English law, so if the couple separate in here, in simplistic terms, the court simply applies English law, so the couple have no special rights as cohabitants and must simply have their affairs dealt with on separation according to English property and trust law.
These laws were not intended to deal with complex family and domestic situations.
A couple who met in England, who include a choice of law and choice of jurisdiction clause in their Cohabitation Agreement in relation to their jointly owned home in London, which they retain and rent while moving to Ontario, Canada as an example, may find themselves in the midst of a jurisdictional argument about whether the clause on jurisdiction and choice of law override the additional rights available to cohabitants of right to support and claims for equitable relief.
Certain jurisdictions make it virtually impossible to “contract out” of certain cohabitation rights as a matter of public policy.
Overall, for as long as myths abound about common law wife and cohabitants’ rights, it must be prudent for clients in England and Wales to enter into a detailed Cohabitation Agreement, which sets out the ways in which the parties will divide their assets and provide (or not provide) financial support in the event of a split, clearly electing both jurisdiction and choice of law.
If the couple have international links and differing domiciles or the intention to relocate, then advice from local lawyers is paramount.
