What Rights do
Co-Habiting Couples Have?

target symbol
target symbol
target symbol

IN THIS BLOG

Moving in together is an exciting time for couples and can be the next step in a relationship.  Some couples choose to live together and not get married or enter a civil partnership, others see marriage in their future. Whether or not marriage is in your plans, it is important to know your rights as an unmarried couple.

COMMON LAW MARRIAGE

Contrary to popular belief, the concept of Common Law Marriage does not exist. and has not since 1753. No matter how long you and your partner have been together, you do not have the same rights as a married couple.

COHABITATION AGREEMENT

As common law marriage does not exist it is sensible to think about how things will work when  you decide to live together. If you wish to formally record the agreements you have reached to provide clarity for you both then a Cohabitation Agreement can be a sensible way forward. The knowledge that a Common Law Marriage does not exist may encourage some couples to go down the route of entering into a Cohabitation Agreement or a Living Together Contract.

What goes in a Cohabitation Agreement?

Typically, a Cohabitation agreement outlines the responsibilities of each partner in terms of:

  • Division of rent or mortgage repayments and other household bills
  • How joint accounts are to be used
  • How liabilities are to be treated
  • In some circumstances how property and assets are to be divided or shared
  • Arrangements for children and pets

When drafting a Cohabitation Agreement, your Solicitor will ask you for a full list of all finances including assets, debts and an outline of any other finances you would like to be covered in the agreement. They may  also ask for:

  • Your tenancy agreement or title deeds if a property is owned
  • Proof of earnings (bank statements or pay slips)
  • Proof of assets such as investments, property etc

Should you wish to create a Cohabitation Agreement, please contact one of our Family Law Team on

WHAT HAPPENS WHEN YOUR PARTNER DIES?

If your partner dies without a will and you were not married (or had not entered a civil partnership), they will die intestate and the rules of intestacy will apply.  For married couples, the rules include provision for the surviving spouse.For unmarried couples, the rules do not account for the surviving partner.  Provision for the surviving partner can be made by preparing Wills, this will ensure that you provide for one another following your death. This offers peace of mind and ensures a clear direction of what is to happen following their death. In these circumstances, it is important to speak to a solicitor to ensure your Wills meet all of your requirements.

HOW CAN UNMARRIED COUPLES ESTATE PLAN?

As already stated, unmarried couples do not have the same rights that married couples have in terms of intestacy, prenuptial agreements and Family & Estate planning. The best way for unmarried, cohabiting couples to plan for the eventuality of either partner’s passing is to meet with a Solicitor and draw up a Will.  You may also wish to put Lasting Powers of Attorney(LPA’s)in place, LPA’s allow you to appoint a trusted person (an attorney) to act for you if you lose capacity or the ability to continue to manage your own affairs. You can instruct the solicitor dealing with your Will to prepare an LPA for you, and they can register them with the Office of the Public Guardian on your behalf.

INHERITANCE TAX

Depending on the value of the estate, there may be inheritance tax to pay following the passing of a partner.  Tax reliefs available to married couples are not available to cohabitees.  It is important to discuss this with your solicitor whilst preparing your Wills. This will allow you to make arrangements to create the best tax outcome for you and your family.

CHILDREN

Whilst estate planning and preparing your Wills, you can also make provision for your children, such as financial planning and appointing guardians.

DEBTS

You will only be liable for any debts that are in your name, either jointly or solely. You will not be liable for any debts that are just in your partner’s name.

Should you and your unmarried partner take out a loan in both of your names and your partner passes away, you will be liable for the whole of the remaining debt. You may also be responsible for debts for which you have ‘joint and several’ legal responsibility.

One example of this is Council Tax in England and Wales. If either cohabiting partner owes Council Tax, both partners are responsible for the debt regardless of who contributes to the tax.

Additionally, you will also be held liable for any loan or debt for which you are listed as a guarantor.

Neither spouse of a married couple will be held liable for any financial obligation that was entered into before marriage.

HOUSING

Renting/Tenants 

Your rights will vary depending on the type of tenant you are.

If you are living in rented accommodation with your partner and are not named on the lease/tenancy of the property, you will typically have no rights to stay in the accommodation if the landlord asks you to leave. You may be able to get short-term rights to stay by applying to court. Find out more about this process. Your rights may also vary if your partner has been violent toward you.

Lawyers will usually advise that when living together both partners are named as joint tenants to provide both partners with equal rights. Joint tenancy is a requirement for many social housing landlords. Landlords will usually agree to convert an existing sole tenancy to a joint agreement but this will need to be discussed with the landlord and the existing sole tenant.

In the event of the death of a sole tenant, the surviving partner may have rights that allow them to continue to live in the home. Should you ever find yourself in this position, seek legal counsel as a matter of priority.

 

OWNERSHIP OF PROPERTY

If you are joint owners of the property then each partner has equal rights to stay in the property regardless of who has put more money into the property.

If you are the sole owner of the property you have the right to stay in the home however, your partner may be able to claim a ‘beneficial interest’ in the property.

If your partner is the sole owner of the property you may not have any right to stay in the property if your partner asks you to leave. You may be able to claim a beneficial interest in the property in some circumstances. Additionally, if your partner were to die without a Will in place that outlines what should happen to their property in the event of their death, then the property would pass in accordance with intestacy laws. Therefore, it could pass to their children or to their nearest blood relative.

If you have children and the sole owner of the property is a legal parent of the child, a court may allow you to transfer the property into your name. The court will need to decide that it is in the best interests of your children to do this and may only do for a given time period such as the youngest child turning 18 years of age.

 

BENEFICIAL INTEREST

If you and your partner do not have children, you may be able to show you have a beneficial interest in the property to obtain long-term rights to the property. The court would need to recognise the contributions you have made toward the home or an arrangement you had agreed with your partner in which you would have a claim to a percentage of the proceeds when the property is sold.

Should you succeed in proving a beneficial interest to the court, you may be able to have the right to live in the home, get a share of the proceeds of the sale of the property or prevent your ex-partner from living in the home.

To claim a beneficial interest, you will need to speak to a specialist solicitor.

 

PARENTING

Whether married or unmarried, the  parents of a child each have parental responsibility if the father is named on the birth certificate. If the father is not named, he may be able to acquire parental responsibility from the court. Each parent also has financial responsibilities for their children.  They can be contacted by the Child Maintenance Service for maintenance payments if they are no longer living with the child and other parent.  Having parental responsibility for a child does not mean you have an automatic right to shared care of the child. Hopefully on your separation you would be able to make the arrangements for your children between you but if this is not possible then we can assist in making these arrangements whether by negotiation or court proceedings if these become necessary.

 

DOMESTIC ABUSE

Regardless of status of marriage, any partner can go to court to obtain an order to protect themselves and their children should they be subjected to domestic abuse.  The perpetrator of the abuse  may be ordered to leave the home for a given period of time and some types of order mean the perpetrator can be  can be arrested if the order is not obeyed.

Marriage, divorce, living together and death all have a huge impact on your financial situation as well as your day to day life so seeking legal advice should be high on your priority list should any of these life events happen.

Get in touch for a free, no obligation, 30 minute consultation from one of our specialist Solicitors.