Cohabitating Couples & Their Legal Rights

Cohabitation, where couples live together without being married, has become increasingly common in the UK. However, many cohabiting couples are unaware that they do not have the same legal rights as married couples and often refer to themselves as a ‘common law husband or wife’. Unfortunately, this does not exist and many people find themselves in difficulties upon separation due to the same.

Legal Status of Cohabitation
Cohabiting couples are not afforded the same legal rights as married couples or those in civil partnerships. This lack of recognition can have significant implications in many areas:

Property Rights

1. JOINT OWNERSHIP – Joint Tenancy vs. Tenants in Common:
If you and your partner jointly own property, you will hold it one of two ways:

• Joint Tenancy: Both parties own the whole property jointly, and upon the death of one partner, the property automatically passes to the surviving partner.
• Tenants in Common: Each party owns a specific share of the property. This share can be passed on to someone else through a will.

2. SOLE OWNERSHIP:

• If the property is in one person’s name only, the ex-partner has no automatic legal right to it, regardless of how long they have lived there.
• There are a number of situations where the Court will find that you have an interest in property not registered in your name. These include where you have reached an agreement with your ex-partner when the property was bought or when you moved in together. You must also have relied on this agreement to your detriment by making payment towards the deposit on the mortgage and household bills. Another way, may be that you have contributed to a home improvement that has increased the value of the property. Finally, the Court may infer you have an interest based upon the conduct of you both. This is a lot more difficult to prove however.
• This is a complex area of law and legal advice needs to be sought immediately to protect your position as notice may need to be filed with the Land Registry to ensure your ex-partner does not try to dispose of the property.

Financial (Spousal) Support
Unlike married couples, cohabiting partners do not have an automatic right to financial support (spousal maintenance) from their partner upon separation. This can create financial vulnerability, particularly for partners who may have taken on a primary caregiving role or sacrificed career opportunities for the relationship as they are not entitled to anything from their ex-partner save for child maintenance (if there are children within the relationship).

Children and Parental Rights
For cohabiting couples with children, parental rights are a significant consideration:

1. Parental Responsibility:
   Mothers automatically have parental responsibility. Fathers gain parental responsibility if they are named on the birth certificate (for children born after December 1, 2003), if they marry the mother, or through a parental responsibility agreement or court order.
2. Child Maintenance:
   Both parents are legally required to financially support their children, regardless of their relationship status. The Child Maintenance Service (CMS) can assist in arranging and enforcing child maintenance payments if agreement cannot be reached between you.

Inheritance and Wills

1. Intestacy Rules:
   If one partner dies without a will, the surviving partner has no automatic right to inherit under the rules of intestacy if they are not married. This can lead to significant financial hardship and even the loss of the family home.
2. Making a Will:
   To ensure your partner is provided for in the event of your death, it is essential to make a will. This legal document allows you to specify how your estate should be distributed and can provide protection for a partner who you are not married to.
3. Inheritance Tax:
   Cohabiting couples do not benefit from the same inheritance tax exemptions as married couples. This means that the surviving partner may face a significant tax bill on an estate left to them.

Legal Agreements for Cohabiting Couples
To safeguard your interests, we would suggest the following legal agreements are considered:

1. Cohabitation Agreement:
   This agreement sets out how finances, property, and other assets should be divided if the relationship ends. It can also cover arrangements for children.
2. Declaration of Trust:
   For property owned in one person’s sole name, a declaration of trust can specify each partner’s beneficial share and what should happen in various scenarios, such as one partner wanting to sell their share. This protects parties who cannot get a mortgage and therefore be placed on the Land Registry.
3. Power of Attorney:
   Granting your partner Lasting Power of Attorney ensures they can make decisions on your behalf if you become incapacitated.

Conclusion
If you need help however in navigating a breakdown of a relationship, at MBH Solicitors we offer 30 minutes FREE legal advice. Please get in touch and speak with one of our family lawyers now on 01942 206060 or by e-mail to mbh@wigansolicitors.com