London Family Solicitor
In recent years there has been an increase in the number of couples who are choosing to live together rather than get married or enter into a civil partnership. Some don’t feel the need for a legal contract, while others see living together as a stepping stone to marriage or civil union. No matter what the reason, it’s important to realise that couples who cohabit outside of marriage or a civil union agreement have fewer rights and less legal protection.
A lot of cohabiting couples believe that there’s such a thing as a ‘common law marriage’, which applies to all partners living together. However, they might be surprised to discover that this is actually not the case in England and Wales. Most couples who are simply cohabiting are living together without much of the protection offered to married couples and civil partners, which can cause problems when the relationship ends, or one of the partners dies.
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.
Unfortunately, it’s very likely that there are a large number of cohabiting couples who are unaware of just how precarious their current legal position might be. To prevent this situation, couples should consider one of the following approaches when they are looking to buy a property together:
- Joint Tenants – When cohabiting couples decide to buy a property as joint tenants it means that each has an equal right to the property. If the relationship ends then both partners have a claim to it, if one partner dies the surviving partner would receive their share.
- 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.
If you currently have a joint tenancy and your situation changes, as a result of the relationship breaking down or one partner paying a larger percentage of the mortgage, then changing your agreement to a tenancy in common is a relatively simple process.
Although this deals with property purchases, couples who are sharing a rented property also need to be aware of the legal implications of their tenancy agreement. If there is only one name on that agreement then they will be the only person who has a legal right to remain in the property, which could cause problems if something happens to them or the relationship ends.
Finances & Cohabitation
The finances of married couples and those in a civil union are significantly better protected than those who are simply cohabiting. When a marriage or civil union is dissolved, each partner has a right to a share of the joint assets, and one partner may even need to provide maintenance payments to the other. Cohabiting couples however, don’t enjoy these same rights.
If a couple are cohabiting, neither partner is financially responsible for the other. This means that should the relationship end for whatever reason, neither partner would have a claim over the financial assets of the other.
Parental Rights & Cohabitation
When parents are married or part of a civil partnership, they naturally assume all legal rights and responsibility for their children. For couples who are cohabiting, these same rights and responsibilities are only available to the father if his name is present on the birth certificate, or the appropriate documentation is provided which confirms he is the parent of the child in question.
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).
As each relationship is unique each cohabitation agreement tends to be different, but they all tend to cover a variety of common issues including:
- the distribution of property
- child custody and visitation
- how shared debts will divided up
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.
For anyone who needs advice about their current situation, a London Family Solicitor from our firm will provide the assistance and guidance you need.