Co-Habiting Rights: What you need to know about property, finances, children and inheritance.
Bigfoot, the Loch Ness Monster, the British Summer.
There are many things which we believe exist, but for which there is very little evidence!
Research from 2004 showed that six in ten people wrongly believed that co-habiting couples had the same rights as their married equivalents. In 2008, 51% of respondents to the British Social Attitudes Survey stated that they believed unmarried couples who live together probably or definitely had a “common law marriage” which gave them the same legal rights as married couples.
It is alarming that more than half the population seem to believe in a law (common law marriage) that has not existed in England and Wales since 1753. (It is worth noting that cohabiting couples in Scotland do have some basic rights if their partnership ends).
In 2015 the Cohabitation Rights Bill looked like it would address the rights of the 5.9 million people cohabiting in the UK. However the Bill never progressed past its first reading in the House of Lords.
This means that while married couples are protected by law under the Matrimonial Causes Act 1973 (with matrimonial law governing any subsequent separation), cohabiting couples have no such legal protection.
So what exactly are the legal implications of being a cohabiting couple?
The Rights of Cohabiting Couples
Unlike married couples or civil partnerships, couples who live together have hardly any rights. Unfortunately, many only discover this when their relationship ends.
If you are thinking of moving in with a partner it is advisable to understand how cohabiting affects your legal position so you can take steps to protect yourselves.
Living Together – Your Cohabitation Rights
Cohabitation does not automatically give you rights to the home you and your partner share.
Rented Property – only the tenant(s) named in the rental agreement generally have the right to live there and it is their responsibility to pay the rent. If you move into your partner’s rented home and you are not added to the agreement, he/she can ask you to move out at any time.
Owned Property – only the property owner is entitled to live there. Anyone else can be asked to leave. The owner can also make decisions about the property on their own, such as deciding to sell it.
If you do not own the house, and one of the conditions below applies to you, then you may still have some rights to a share of the money if the house is sold:
- Your partner agreed in writing that you are entitled to a share of the home;
- You have financially contributed towards the property on the understanding that this entitles you to a share;
- You acted to your own disadvantage (e.g. giving up a job) on the understanding that this would entitle you to a share.
Joint Ownership – this helps protect cohabiting partners but can have some drawbacks, including:
- If the relationship ends you cannot make your partner sell the home without applying for a court order;
- If the home is sold, you would normally only be entitled to a half share of the profits, regardless of your contribution towards the costs of buying the home, unless otherwise agreed. Agreement can be written or spoken (so long as this is proven), and can also be inferred from behaviour;
- If your partner leaves, then you are likely to be liable for mortgage payments.
Possessions and Finances – Your Cohabiting Rights
Cohabiting couples do not automatically share ownership of their possessions, savings, investments etc.
Possessions – in general, anything you owned before you moved in together is still owned by you; anything you bought yourself is yours; anything you bought together is owned together (in shares that you each contributed to the purchase price unless agreed otherwise). Gifts are owned by the recipient.
Debts – normally you are both liable for any debts in joint names, such as credit cards or unpaid household bills. This means that if your partner doesn’t pay, you can be asked to pay the total amount.
Benefits – these may be affected by living with your partner as his/her income is also taken into consideration when calculating eligibility.
Children – Your Cohabiting Rights
To have a legal right in important decisions about your children you have to have ‘parental responsibility’.
Mothers automatically have parental responsibility; unmarried fathers automatically have it if they are named as the father on the birth certificate and their child was born after 1st December 2003.
If this is not the case, fathers can acquire parental responsibility by one of the following means:
- Marrying the mother of the child after the birth;
- Entering a formal parental responsibility agreement with the mother;
- Applying to the court for a parental responsibility order;
- Being appointed as the child’s special guardian.
(See our article on ‘What are my rights as a Separated Father?’ for more information).
If a cohabiting couple separates, then decisions about who the children should live with are based on the children’s best interests, rather than on who has parental responsibility.
Ideally these decisions, and contact arrangements, will be agreed between you, but either of you can apply to the court to help resolve things.
Inheritance –Your Cohabiting Rights
Cohabiting partners have no automatic right to inheritance if their partner dies. It is therefore vital to make a will if you want your cohabiting partner to be a beneficiary to any of your assets.
If you are ‘joint tenants’ on your home, then the surviving partner will own the entire home. For ‘tenants in common’, the deceased’s share is dealt with under the terms of their will.
Cohabiting couples are not entitled to state benefits such as bereavement allowance or a state pension based on their late partner’s National Insurance contributions. Any entitlement under private pension or life insurance arrangements depends on the terms of that particular scheme).
In addition, if you inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax, whereas married couples are.
How Can Cohabiting Couples Protect Themselves?
At Osborne Morris & Morgan, we provide expert advice on the steps you can take to reduce the possibility of costly arguments over property and other assets if your relationship does not work out.
As stated in our ‘What You Need to Know About Living Together Agreements’ article, a living together agreement (also sometimes called a cohabitation agreement) is recommended for all non-married couples who decide to live together.
The agreement will typically cover:
- Any other assets
It can also set out how to:
- Manage bank accounts and any debts
- Deal with joint purchases (i.e. a car)
- Support any children
We appreciate that these subjects can be difficult to bring up, however having a living together agreement in place can help provide clarity in emotional and stressful times.
How Osborne Morris & Morgan Can Help
We offer an initial consultation with one of our friendly, experienced solicitors in Leighton Buzzard for £79 + VAT. Simply call us on 01525 378177 or contact us online for further information.