Across England and Wales more and more couples are choosing to live together without getting married or entering into a civil partnership. This cohabitation may be leading up to some kind of formal union, or the couple may just prefer the simplicity of cohabiting. Either way, what all partners in this situation must realise is that they don’t have the same protection under the law as married couples or those in a civil partnership.
While many couples who live together may have heard of the term ‘common law marriage’ and assume that it applies to them, they would be wrong. Family Law in England and Wales doesn’t recognise common law marriage, which means that cohabiting partners have significantly fewer rights than married couples and civil partners, if anything were to go wrong with the relationship, or one of them were to die.
Cohabitation and Property
Many couples live together without getting married or becoming civil partners, and as long as the relationship is okay, this can work out fine. However, if the relationship ends for whatever reason, one partner could find that they don’t have any claim on the property, regardless of how long they might have lived there.
Many cohabiting couples don’t actually realise the precarious legal position they could be in until it is too late. While not something a lot of unmarried couples contemplate when they are thinking of setting up home, the appropriate course of action may be to take care of the necessary legal arrangements in case the relationship fails, which can be achieved by purchasing a property in one of two ways:
- Joint tenants – Cohabiting couples can purchase a property as joint tenants, which means that they both own the property equally. If the relationship ends, both have an equal claim to the property, and if one dies, their share would automatically pass to the surviving partner.
- Tenants in common – If the cohabiting couple choose to purchase the property as tenants in common, each will have a specific share, usually in proportion to the amount they have invested in the purchase. They would maintain this share after the end of a relationship, but it wouldn’t be passed to the other partner in the even of their death. Instead, it would be treated as part of the deceased partner’s estate.
A joint tenancy can be changed to a tenancy in common without too much fuss, which would probably be appropriate if the relationship ended (so your ex-partner would no longer be entitled to your share of the property if anything happened to you), or if one partner begins to contribute a larger percentage of the mortgage payments.
While this deals with cohabiting couples purchasing a property, when it comes to renting a property, a similar argument for dealing with the legal aspects of the tenancy also applies. If your partner’s name is the only one on the tenancy agreement, you will have little or no legal right to remain in the property if the relationship breaks down or something happens to them.
Cohabitation and Finances
When it comes to a couple’s finances, husbands and wives and civil partners receive significant legal protection if the relationship should end. Depending on the couples involved and their particular situation, one partner might be expected to pay some kind of maintenance to the other, in order to help them adjust to life on their own. But this isn’t the case with couples that are cohabiting.
Partners who are simply living together have no financial responsibility to each other after the relationship ends, and neither would they have any claim to eachother’s assets if something was to happen to one of them.
Cohabitation and Parental Rights
When a married couple have a child, because the mother and father are part of a legally recognised union, they naturally assume the legal rights and parental responsibility for that child. However, with cohabiting partners, unless the father of the child is present at the registration of the birth, or the appropriate documentation is provided to acknowledge that he is the father, he will have no legal rights or parental responsibility for his child.
Many unmarried fathers are unaware of this fact until the relationship breaks down and they then find it very difficult to obtain any kind of access to their children. In some cases they may even have to apply to the court for a parental responsibility order, to obtain the legal rights associated with being a parent.
To safeguard themselves against the potential legal pitfalls of cohabitation, many couples decide to draw up a cohabitation agreement. This can be done before moving in together, during cohabitation, or even after separation (although then it has more in common with the traditional separation agreement).
A cohabitation agreement can be created to suit each individual relationship, and usually covers a variety of topics including:
- how the property will be shared
- arrangements for any children in the relationship
- how any accrued debts will be distributed
The cohabitation agreement can be designed to act as a guide to help facilitate a separation, or it may be intended to be legally binding – although it can be up to the court to decide whether or not it should be upheld.
A recent review of the laws relating to the break up of partners who are neither married or in a civil partnership, means it’s likely that the legislation could be changed in the near future.
In the meantime, if you are cohabiting and concerned about your situation, get in touch with our Leeds Family Law Solicitors, who will provide you with the help and advice you need.