Legal Guide

Cohabitating couples

Cohabiting couples are one of the fastest growing demographics in the UK. The number rose by 30% between 2004 and 2014, and now the figure stands at close to four million couples, according to the Office for National Statistics. Over 40% of these cohabiting couples have dependent children. While the numbers are growing the law in relation to cohabiting couples has not changed. This means that there is little to no provision under the law of England and Wales for cohabiting couples and this does not look set to change in the near future.

When you enter into a relationship, you don’t usually tend to think too much about the idea of breaking up at some point, or worse, what would happen if your partner passes away. Unfortunately, these things can happen and it’s important to know your rights, especially as you hit those relationship milestones, such as moving in together, buying a house and having children. We have compiled a guide to help cohabiting couples know what rights they have.

Does ‘common law marriage’ exist in the UK?

No, common law marriage does not exist. It has not existed in the UK in any legal way since 1753. The term ‘common law marriage’ has been in widespread use for a long time and according to a survey conducted by One Plus One, 58% of respondents thought that ‘common law marriage’ was recognised in law. However, the truth is that couples who are unmarried have no responsibility to each other; but, if you have children, both parents have a financial responsibility for them.

Buying a home together and not married

There are two ways to own a home when there is more than one name on the deeds as joint tenants –or as tenants in common. This applies to anyone who buys a house together (married, unmarried or buying with a friend or family member.) It is worth noting that if you are married and want to divorce, joint assets will be dealt with under matrimonial law in the Family Court but, if you are unmarried or buying with someone else, such as a family member or friend, such disputes will be governed by trust law and dealt with in the Civil Court.

If you choose one type of ownership when you initially buy a home, your solicitor can easily change the ownership type at a later date–providing both of you agree.

Joint Tenants

In the eyes of the law, if you and your partner own a property as joint tenants, you both act as a single owner meaning:

  • You both have equal rights to the whole property
  • You can’t leave the property to someone else in a will
  • If your partner dies, the whole property passes to you and vice versa
  • If you wish to remortgage the property you must do so as a whole. You cannot just remortgage your half

Tenants in Common

If you own the property as tenants in common this means that you own a defined share of the property. This type of ownership is becoming more common with couples, who are not necessarily contributing an equal amount of money into the property purchase. For example, if the bulk part, or whole of the deposit is coming from one-half of the couple.

As tenants in common:

  • You can separately sell your share of the property and any profits will be kept by you (minus any taxes, fees, etc.).
  • You can pass your share to whomever you wish in your Will. If there is no Will then generally it will pass to your next of kin
  • You only own, and have an interest in, your defined share of the property

What happens if the family home is not in my name and we are not married?

Unfortunately, if you are not a joint owner of the property that you live in with your partner, there is little recourse in the event of a relationship breakdown. Your partner could be well within their rights to ask you to leave and you would not benefit if the property were to be sold.

However, it may be possible to claim a ‘beneficial interest’ in the property if you can prove that a trust has been created; for example, by helping to pay the mortgage or having contributed financially to major home improvements that may have added value to the property or by having oral discussions with your partner which establish such an interest.

If you are not an owner of the property you have been sharing with your partner but have children and are their primary carer, it could be possible to ask the Court to make an order under the Children Act 1989, to transfer the property into your name on trust for the children however, this would only be for a limited period, for example until the youngest child reached 18-years of age at which point the property would revert to your partner.

Renting a home together and not being married

Usually, when a couple rents a property together, they have a joint tenancy – this means that both your names are on the tenancy agreement. If both names are on the tenancy agreement then both have an equal right to stay in the property.

If your name is not on the tenancy agreement then you have no right to stay in the property. If you have children and are the primary carer, it may be possible for you to apply to the court and have the tenancy transferred into your name. In certain circumstances it may also be possible to apply for an Occupation Order.

Other assets

As an unmarried, cohabiting couple neither side can have access to any assets such as shares, pensions or life insurance if they are not named as the holder or are not married to the holder. It is possible to make a Will bequeathing such assets to your partner upon your death, however, if this is not done, the surviving partner will get nothing and it will generally go to whoever is considered the next of kin.

If you have joint savings or money in a joint account, you both have equal rights to the money. It is generally recommended that the money should be divided and the accounts closed straight away in the event of a breakup.

Am I liable for my partner’s debts?

If the debts are not in your name then you are not liable for them, however, if they are in your joint names you still have a responsibility towards the debt, as does your partner. It is worth noting that all those named on joint debt have both joint and individual liability to it. This means that if your partner stopped paying, you are still liable for all the debt, not just half. If you are named as guarantor on your partner’s debt, you will still be responsible for it until it is paid off – even if your relationship has ended.

What happens if my partner dies and we are not married?

If, in the unfortunate instance that your partner dies, you are not married to each other and there is no will – then the surviving partner is normally not entitled to anything – at least not in the same way a spouse would be. This can include property (if it’s not in your name), money, life insurance pay out, or even personal effects.

Normally, you would not be entitled to a survivor’s pension either, however, a recent decision by the UK Supreme Court ruled that an unmarried woman could get survivor pension payments from her long-term partner’s pension after he died suddenly. This landmark ruling may mean that unmarried partners could be entitled to a survivor’s pension. If you were married you would be automatically entitled.

The only time you would be entitled to anything is if there is a Will or if you own a house together as joint tenants or if you have a joint savings account then the property and the money will -pass to the surviving partner.

If you own a house as tenants in common, then you will only be entitled to your share of the house and your partner’s share will generally pass to whoever is deemed their next of kin.

Children and unmarried partners

The only time the family courts can intervene in the breakup of an unmarried couple is when there are children involved. The courts have the power to make Child Arrangement Orders dealing with who the children’s main carer will be and how much time they spend with the other parent as well as Prohibited Steps Orders and Specific Issue Orders.

You should also note that in the majority of cases the Family Court cannot make an order in relation to Child Maintenance which ousts the jurisdiction of the Child Maintenance Service. As a result of this an application for assessment should be made to the Child Maintenance Service if maintenance cannot be agreed.

If you are unmarried, you are not entitled to any sort of ‘spousal’ maintenance from your former partner – even if you gave up your career to look after your children.

As an unmarried father, you do not have automatic parental responsibility for your children, but you will have financial responsibility (regardless of whether you have parental responsibility) as will the mother. You can only get Parental Responsibility if you are named on the child’s birth certificate, have a Parental Responsibility agreement in place, marry the mother at a later date or adopt the child. If you are the mother you have automatic parental responsibility.

As with divorce situations, if you can’t agree on child care between yourselves then a solicitor, mediator and maybe even the courts may need to get involved.

What is a Cohabitation Agreement in the UK?

If you are unmarried and live with your partner, you don’t have to leave what happens to fate; you can get a Cohabitation Agreement.

A Cohabitation Agreement is a legally binding document entered into by both of you, to set out what will happen to your finances, property and children (if applicable) if you should break up. Cohabitation Agreements should be drafted by an experienced family solicitor, because if they are not the agreement could be considered void if a dispute was to arise.

You will each need an independent solicitor and negotiations can be done either face-to-face, or by correspondence. For the Agreement to be legally binding both of you must have entered into it willingly as if it is believed that one-half of the couple was pressured to sign the agreement could be considered null and void.

Looking for experienced cohabitation solicitors in Preston, Ramsbottom or Darwen? Then contact Barber & Co today.