Bennifer 2.0 - implications & considerations for cohabiting couples

The celebrity world was jumping for joy this summer with the announcement that Jennifer Lopez and Ben Affleck have rekindled their relationship, jokingly referred to in the media as “Bennifer 2.0.” Recently, it has been suggested that it is only a matter of time before the couple start living together.

So what is the legal implication of this and what relevance might it have to you?

There are some states in the U.S.A which recognise “common law spouses.” There is no such legal concept in England and Wales.

So what then happens for couples in this country in a cohabiting relationship who separate?

In England and Wales the law surrounding cohabitating couples is different to married couples.

Whereas a married couple may be potentially entitled to half, or more, of their spouses’ assets, a cohabiting couple is likely to leave the relationship with only what they legally own in their name or their legal (usually half) share of any jointly owned assets. This is regardless of the length of that relationship. They also have no automatic claim on their partner’s pension.

Home ownership can be complicated! The starting point is that a property owned in one party’s sole name belongs solely to that person but there is a misconception that the other party will not have any claim in respect of that property.

In certain limited circumstances the non owning party could make a claim but generally only if there was an agreement or implied agreement that they would have a share and they have spent significant money on the property. Just paying the bills though is not generally enough.

The partner who does not own the property may claim that the property is held on “trust” for them and even though legally they do not own the property, they own what is known as a “beneficial interest” in that property.

If there is a dispute about whether that “beneficial interest” the cohabiting couple may have to ask the court whether the interest exists and if so, what share of the property should be awarded to the partner who does not own the property.

If the property is owned jointly it is often as “joint tenants”. This means that both parties hold the property in equal shares and on death the survivor inherits the whole property. However it is possible to own the property in non equal shares and keep the right to leave your share elsewhere on your death but this needs to be clearly set out in  a legal deed.

You could have been living with your partner for many years, completely unaware that you may have no claim on your house and no claim of your partner’s pension!

So what should you think about doing?

You could enter into a “cohabitation agreement.” This is a legal document which you and your partner sign, usually drafted by lawyers. It will state what happens to the assets in your relationship, if you separate. If you can agree, it is likely to be significantly cheaper than going to court! Clearly, Ben and Jen are unlikely to be concerned with this when buying their £10m houses, but for the average Joe’s amongst us, it is a scary thought thinking you could separate from someone you have lived with for many years and leave the relationship with very little!

You could also think about making a will. You are not married. Your partner is not your next of kin and vice versa. If one of you dies, the other, legally, is not entitled to anything.

Each year, more couples choose to cohabit in England and Wales rather than marry. If you are in a cohabiting relationship and you are concerned about how your assets may be dealt with upon separation, contact our experienced family team who can assist you. In the meantime good luck to Ben and Jen and their families!

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