Editor's note: Toby Atkinson is a senior associate at Charles Russell and specialises in family law issues including divorce, ancillary relief and children matters such as residence and contact disputes. He also advises unmarried couples on issues arising on relationship breakdown, such as disputes over property and financial claims for children under the Children Act.

The recent case of Simon Brown, a “new-age guru to the stars”, who is being sued by the mother of his 16 year old child to secure a "common law divorce" pay-out, has highlighted the issues that can arise on the breakdown of relationships between unmarried couples.

Dragana Brown has allegedly made a claim for a share of Mr Brown’s wealth, including the £500,000 home in which they lived for more than 15 years, on the basis that they were "man and wife" in all but a legal sense. It has been reported that Ms Brown has claimed that her guru partner told her that she “need not worry” about their home being in his sole name “as she was protected as a common law wife”' should they split up.

Dragana Brown is not the only person who has apparently been living under the misapprehension that “common law marriage” exists in this country (it does not). It is simply not the case that unmarried couples who live together as “husband and wife” eventually acquire certain legal rights in relation to each other, similar to those enjoyed by people who marry. Cohabiting couples may create legal obligations towards one another, but they do not automatically acquire any rights simply by virtue of having lived with another person, whatever the length of time, even if this results in unfairness to the economically vulnerable partner.

Until legislation is brought in to create rights and responsibilities for those living together cohabitants whose relationship has come to an end must continue to rely on an unsatisfactory and complicated patchwork of legal rules. Disputes over ownership of property can be particularly difficult and expensive to resolve. An unmarried couple’s rights in relation to property are significantly affected by whether or not there are children of the relationship. If there are, apart from maintenance claims, it is open to a parent to make an application under the Children Act 1989 for a lump sum, settlement or transfer of property order.

However, since the law is still that the cohabitant herself (it is still usually the mother making the claim) has no claims in her own right, any capital which is awarded to purchase a property is likely to be held in trust until the child’s majority or the end of full-time education, whereupon the capital sum will revert to the payer. This obviously causes difficulties to the parent with care if that parent’s career has been adversely affected by parental duties.

As a family lawyer, I have seen an increasing number of cases over the last few years which bear a striking resemblance to that of Simon and Dragana Brown’s. This is perhaps not surprising given that one in six couples now cohabit in the UK, whilst almost half of all children are now born outside wedlock. So what can people do to ensure that they are financially protected in a cohabiting partnership?

Parties purchasing a property together should always enter into a declaration of trust, recording and regulating how the beneficial ownership of a property is to be held. This is a valid document for all purposes which cannot be overturned in the absence of fraud, mistake or duress.

However, the safest way for unmarried couples to protect their rights and avoid themselves becoming embroiled in future litigation is also to enter into a cohabitation agreement. This is a flexible, bespoke agreement regulating cohabitation and the financial aspects of cohabitation. It can define a couple’s shares in a property (in the same way as a declaration of trust) but also contain provisions relating to other financial aspects of their relationship that they wish to regulate, which might include providing for how ongoing financial contributions towards the property and general outgoings are to be met and determining what will happen to the property in the event of separation (particularly where there are children).

In some cases, parties will even wish to include a provision that upon separation maintenance will be payable by one party to the other (this can be useful as there is currently no statutory provision requiring a cohabitee to provide financial support to their former partner in their own right on separation).

Cohabitation agreements are advisable even for those who own a property in their sole name. Many people do not realise that their non-owning cohabiting partner could acquire an interest in their property in certain circumstances, including:

- If he or she has contributed her own significant time or more particularly finances towards making improvements on the property (for example, having undertaken a lot of DIY or paid builders to carry out improvements);

- If he or she has contributed to the mortgage repayments;

- If the owner has given assurances to his or her non-owning partner that he or she subsequently relied on to his/her financial detriment. Sweeping statements such as “please treat this property as much as yours as it is mine” or “what is mine is equally yours” are particularly dangerous!   

These are just some of the circumstances which could give rise to a claim, and which a cohabitation agreement could safeguard against. Cohabitation agreements might seem rather unromantic to many people – it can be difficult to broach this subject with a partner at the same time as inviting them to come and live with you – but they can save a great deal of stress and expense in the long-term. It is important also to note that couples can enter into a cohabitation agreement at any time, in order to regulate their affairs during their relationship or recording the financial arrangements upon and after separation.