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Busting the myths of cohabitation

Unmarried couples are not offered the same protection as married couples and civil partners. Cohabiting couples often assume that moving in together creates similar rights and responsibilities as marriage (so-called ‘common-law marriage’) or absolutely no rights at all. Both beliefs are wrong. If you are moving in together, or you are the parent of someone in that position, you should know how cohabiting affects your/their legal position and what protections there are should the relationship end or one of the cohabitees dies. David Anstee, our specialist family solicitor, explains…

Common law marriage
The concept of common-law marriage has no legal validity in England and Wales. Moving in together does not give you automatic rights to each other’s property, no matter how long you live together. And if your partner dies, cohabiting does not entitle you to inherit. Conversely, however, if a cohabiting couple separates and there are children involved, both cohabiting partners may have rights and responsibilities, even if only one of them is the biological parent.

Moving in together: Cohabitation rights
Cohabitation does not automatically give you rights to the home you share. Problems can occur, particularly when one of you moves into a property the other owns or rents. If the property is rented, only the tenant(s) named in the rental agreement generally has the right to live there and the responsibility for paying the rent. If you are not a named tenant:

  • You are likely to need the landlord’s consent to move in
  • The named tenant can ask you to move out at any time (after giving reasonable notice)
  • You have no right to stay if the named tenant decides to leave (though you might be able to agree a new tenancy with the landlord).

Similar rules apply if the property is owned by one of you. The property owner is the only one entitled to live there. Anyone else can be asked to leave. The owner can also make decisions, such as selling the property, without consulting their partner. However, even where only one of you owns the property, the other may have some rights (eg: to a share of the money if the property is sold). This can happen if:

  • The owner has agreed in writing that the non-owner is entitled to a share of the home
  • The non-owner contributes financially (eg: paying part of the mortgage) to the property on the understanding that this entitles him or her to a share
  • The non-owner has acted to their own detriment (eg: giving up a job) on the understanding that this entitles him or her to a share
  • A partner with children applies to the court for the right to continue living there to ensure the children’s welfare.

Owning a property in joint names can help to protect the rights of both cohabiting partners but there are potential pitfalls. For example:

  • You cannot force your partner to sell the home if you decide to leave, unless you apply for a court order
  • Even if you contributed most of the costs of buying the home, you would normally only be entitled to a half share, unless you have agreed otherwise
  • If your partner leaves you, you are likely to be liable for the full amount of any mortgage payments.

If you are buying a property together, you might consider something called a declaration of trust. This will confirm contributions to the purchase price, purpose of the property, when the property should be sold and division of the proceeds if you split up.

Cohabitation: Possessions and finances
Cohabiting couples have no legal duty to support each other financially, either while you are living together or if you separate. Nor do you automatically share ownership of your possessions, savings, investments and so on. In general, ownership is unaffected by moving in together. So:

  • If you already owned something before you started to live together, it continues to be your sole property
  • If you buy something yourself using your own money, it is your property
  • If you buy something together, you own it in the shares that you each contributed to the purchase price unless agreed otherwise
  • If your partner gave something to you as a gift, you own it (though proving that a gift was made can be difficult unless there is written evidence).

A written cohabitation agreement can help avoid disputes: for example, by setting out how much you each contribute to a joint account and how ownership of any items bought using the money will be shared.If you have any debts in joint names (eg: credit cards), you are normally each liable for the debt. If your partner fails to pay, you can be pursued for the full amount. You may also both be liable for household bills.

Moving in together makes no difference where taxes are concerned. They continue to be assessed in the same way as any other individuals. However, any benefits you claim will be assessed on the basis that you are a couple. This means your partner’s income will be taken into account and your entitlement to benefits may be reduced.

Cohabitation and children
Legally, you only have a role in important decisions about children (such as their education and religion) if you have parental responsibility for them. If the parents of children are not married, only the mother automatically has parental responsibility. The mother’s partner only has parental responsibility if:

  • He is named as the father on the birth certificate (for a child born after December 2003)
  • He enters into a parental responsibility agreement with the mother, obtains a parental responsibility order or child arrangements order, or they get married;
  • He is registered as the child’s guardian and all other individuals with parental responsibility have died (including the mother).

If a cohabiting couple separate, different considerations apply:

  • Decisions about who the children should live with and what contact rights the other should have are based on the children’s best interests rather than on who has parental responsibility.
  • If your children live with your former partner rather than you, you may be required to pay maintenance.

The same principles apply for stepchildren whom you have treated as part of your family and helped to support financially. Ideally, childcare arrangements will be agreed between you but either of you can apply to the court to help resolve things. In effect, children are treated in the same way as when a married couple divorce.

What happens if a cohabiting partner dies?
Cohabiting partners have no automatic right to inherit if their partner dies, although they may be a beneficiary under the other’s Will. If you are a beneficiary, any assets you receive may be subject to inheritance tax. There is no exemption for unmarried couples. If you have lived together as man and wife for at least two years or if you can show that you were financially dependent on your partner, you can make a claim for a financial settlement even if you were not a beneficiary of the Will.

However, making a claim on the basis of a common-law marriage like this can involve a complex and expensive dispute with the other beneficiaries. And even if you are successful, you may only be entitled to a limited share of your partner’s assets.

If you owned your home together, the form of legal ownership has a major impact. If you owned your home as ‘joint tenants’, you will automatically continue to own the (entire) home if your partner dies. But if you were ‘tenants in common’, your partner’s share is dealt with under the terms of his or her Will. If you rented your home, your rights to stay depend on the type of tenancy, whose name(s) it is in and your landlord.

You will not be entitled to state benefits such as Bereavement Support Payment or a state pension based on your former partner’s National Insurance contributions. Whether you have any entitlement under private pension or life insurance arrangements depends on whether the particular scheme’s terms gives rights to a cohabiting partner.

Cohabitation agreements
Written agreements can help to protect you from potential risks if you separate or your partner dies. Drawing up a cohabitation agreement can help you think through some of the key issues in your relationship. Though not all of the agreement may be legally enforceable, it can help reduce the likelihood of disputes and make any disputes easier to resolve. For example, an agreement might cover issues such as how bills will be shared, whether you will have any joint accounts, and what roles you will each have in terms of childcare, household chores and so on.

Other possibilities include:

  • Clear arrangements covering ownership of the home and what rights each of you have to live there
  • Taking steps to get parental responsibility for children
  • Appointing each other to hold a lasting power of attorney (so that if one of you is no longer capable, the other can take decisions on his or her behalf)
  • Reviewing your Wills and ensuring that you have each made appropriate provision for the other
  • Checking – and, if appropriate, changing – key financial arrangements such as pension schemes, life insurances, savings and investments.

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