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Many people believe that cohabiting couples who break up have legal rights against each other: the so called “common law husband and wife”. In fact this is a myth as they have no rights based on the fact of their cohabitation.

In 2007 the Law Commission (an independent body which reviews the law of England and Wales and recommends reforms) recommended that the law be changed to give cohabitants some rights when the relationship ended albeit not the same rights as a divorcing couple have against each other. However, the government has not acted on that recommendation. The position is different in Scotland as there cohabitants have rights.

In Scotland the court looks to see if one party has obtained economic advantage from the contributions made by the other party and whether the first party has suffered economic disadvantage in the interests of the other party or any child. The court takes into account the extent to which any economic advantage derived by one cohabitant is offset by the economic disadvantage suffered by the other. Such imprecise wording allows flexibility for the courts using these powers but leads to uncertainty in predicting outcomes. The Law Commission favoured a more restrictive law for England and Wales.

The uncertainty over property when couples split up can be very expensive to resolve. Family mediation can be very helpful in these situations in enabling couples to resolve their differences far more quickly and cheaply than going through the courts.

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