The myths around common law rights
By International Adviser, 3 Aug 18
A lawyer lifts the lid on cohabiting myths around the world that could leave surviving partners with no legal rights.
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 separates here, in simplistic terms, the court simply applies English law.
This means the couple has 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.
For example, a couple who met in England includes a choice of law and jurisdiction clause in their cohabitation agreement in relation to their jointly-owned home in London, which they rent while moving to Canada, may find themselves in the midst of a jurisdictional argument.
The argument would centre on 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.
