Will You Be Entitled to ½?
Many unmarried, cohabiting couples assume that, if they separate, each of them will share one-half of all of the assets, or wealth, that they accumulated as a couple. This is an inaccurate, though widely held, belief. An unmarried, cohabiting spouse does not have any automatic right to share in the property of his or her partner, in the event that they separate.
How Is Property Shared?
If you are cohabiting with a partner, the first question you may ask is: am I a common-law spouse? In the Family Law context, there are no specific legal criteria that qualify a cohabiting partner as a common-law spouse. The more helpful question is: do I have legal obligations to my partner or can I obtain legal benefits from my partner because of our cohabitation.
For an unmarried, cohabiting spouse, to make a claim in relation to the property of his or her partner, that spouse must seek to establish a variety of often complex criteria, including, but by no means limited to:
- a direct or indirect contribution to the property of his or her partner; or
- a direct or indirect contribution to the accumulation of wealth during the period of spouses’ cohabitation.
This assessment is one of the more complex assessments to be undertaken in the Family Law context. As an unmarried, cohabiting spouse it is essential that you obtain the advice of a family lawyer in order to understand your rights and obligations in relation to property.
Before You Enter A Common-Law Relationship
Because of some of the risk, benefits and complexities associated with unmarried cohabitation, it would be useful and prudent to consult with a family lawyer before entering into such a relationship. You may wish to prepare a Cohabitation Agreement which clearly and simply defines your entitlements and your partner’s entitlement in event that your relationship ends.