When Two Become One

January is notoriously the busiest month for family solicitors, and this year is no different. Katy Perry and Russell Brand have joined the hordes of couples who have decided, in a post-Christmas epiphany, that the time has come to split. Despite their short-lived relationship, the couple underwent a marriage ceremony. But how different would their situation be had they decided against it?

According to Brand, the couple chose not to create a prenuptial agreement, which seems to have been a romantic (and wise) move. The law in California (where it is believed that the couple’s marriage was registered), gives Russell a right to half of the $45m which his wife has earned during their 14 month marriage. Had they just cohabited, this certainly would not be the case- perhaps a more sensible move for Perry. Whether Brand will take full advantage of Perry’s marital earnings remains to be seen.

British lawyers are yet to reach a consensus on how separating couples should be treated; married and unmarried. There are some who believe that cohabiting couples should have equal rights to married couples, and those who are diametrically opposed to this idea. Others view marriage as morally or religiously sacred, avoiding break-ups at all costs.

Some of the most highly influential family lawyers in the country have cited their support of Mr Justice Coleridge, a judge in the Family Division of the High Court, and his plans to set up a ‘Marriage Foundation’ to encourage and support marriage. Somewhat controversially, he has put forward the view that couples who are in stable relationships should marry in order to cement their relationship further, and those considering divorce should ‘mend it’ rather than ending it. This is an interesting stance for a man who grants divorces for a living, and with a third of UK marriages ending in divorce, cannot represent the views of the average Briton.

However, with 15% of families (7.4 million people) in the UK cohabiting, it is clear that marriage is not the most desirable option for all. Many cohabiting couples are averse to idea of formalising their relationship through a piece of paper. On the opposite end of the spectrum, there are those who decide against marriage because they want their relationship to remain free from the legal and social shackles it brings.

Many unmarried couples in long-term relationships have an unfounded belief that they will be treated in law as if they were married. But however the individual couple sees their relationship, there is no doubt that UK law views unmarried cohabiting couples disparately. With divorcing couples, the court’s standpoint is to pool the ‘marital assets’ and divide them as it considers fair. When it comes to unmarried couples, the court starts from the presumption that because they never married, the parties intend to leave the relationship with whatever assets they brought to it. This might be fair when it comes to splitting the CD collection, but not necessarily when it comes to deciding who gets the house, as each of them may have contributed to it since.

In order to protect themselves when moving in together, unmarried couples can create a cohabitation agreement. Similar to a prenuptial agreement for married couples, this is a contractual document setting out what will happen to the couple’s assets should they split up. However, just like prenups, UK courts do not view cohabitation agreements as legally binding or as a concrete representation of the parties’ wishes, but will take them into consideration, enforcing them if the resultant outcome is fair.

Cohabitation agreements are horribly unromantic, and are not always practical, since many couples float into living together in the fog of love. But writing a contract creates a safety net for those couples who want to protect their assets, avoid costly and lengthy legal proceedings and minimise heartache when breaking up. The Spice Girls sang ‘Be a little bit wiser baby… ’Cause tonight is the night when two become one.’ Whether or not we should be taking legal advice from the Spice Girls, I’m not quite sure, but the lyrics do speak some truth. Before you consider moving in together, it is wise to consider a cohabitation agreement, establishing your ownership rights so that you walk into your relationship protected, with your eyes open.