In a recent report by the Office of National Statistics, the number of cohabiting couples was shown to have increased significantly in the 10 years to 2013 and the number of couples opting to live together without getting married or entering into a civil partnership is only likely to increase over time.
A common misconception is that there exists the legal principle of “common law” husband and wife which affords cohabiting couples similar rights to those of married couples. Unfortunately the reality is that no such legal principle exists and cohabitees do not have such automatic protection or rights.
The Cohabitation Rights Bill which has had its second reading in the House of Lords and is now at committee stage is likely to address many of the above issues when it becomes law hopefully in the near future. In the interim, however, it is very important to protect your position as a cohabitant in relation to various matters which are detailed below.
The family home
Being a cohabitant does not automatically give you rights to the home if you move into a property which the other person already owns or rents.
In the case of rented property, only the people named in a tenancy agreement have the right to reside at the property and will be liable for the rent. If you are not a named tenant, this means that you will need the landlord’s consent to live in the property and you can be asked to move out upon notice being given to you. You will also have to leave if the tenant decides to do so.
A similar situation can arise if you move into a property owned solely by your partner who will retain the sole legal interest in the property. You also have no automatic right to reside in the property and can be asked to leave at any time. Your partner can also make decisions about the property without your consent being sought. There are however certain instances when you can attain rights to the property known as a beneficial interest. This could be if your partner has agreed in writing that you are entitled to a share, you make contributions to the property or you have suffered loss on the understanding that you would be entitled to a share of the property. The best way of recording your interest is by way of document known as a deed of trust (also called a declaration of trust) which will detail the specifics of each party’s beneficial interest in the property. In addition, if you have children with your partner you could make an application to continue living in the property to ensure the children’s welfare.
If you purchase a property in joint names you both will have a legal interest in the property but this course of action also has its problems. If you separate from your partner, you can only sell the property with their consent or by way of a court application. You should also ensure that, if you pay unequal contributions towards the property, this is accurately recorded by way of a deed of trust or similar otherwise on separation you may be entitled to claim only half the equity and not the actual amount you put in.
Also, it is important to note that if you separate from your partner and they leave the property then you could be faced with the sole liability for the entire mortgage payments and not be able to sell the property without the assistance of a court application if you are unable to subsequently locate them.
Other financial matters
Cohabitants have no legal duty to support each other financially either while living together or on separation. The only liability a non-resident parent would have is the payment of child maintenance to the party caring for the children.
In terms of personal possessions, the general rule is that if you owned an item prior to living together then that continues to be your sole property. Similarly if you buy something yourself using your own money it again remains your property. If you buy something jointly then you own it in the shares that you each contributed to the purchase price unless agreed otherwise. Also, if your partner gave something to you as a gift then this remains your property.
In relation to debts you are equally liable for those debts in joint names. It should be borne in mind that if your partner fails to pay their share you can be pursued for the full amount by the lender.
Also, any benefits you claim whilst cohabiting will be assessed on the basis that you are a couple which means that your partner’s income will be taken into account and your entitlement to benefits may be reduced.
Only persons who have parental responsibility for any children will be able to make important decisions affecting them. The mother of the children automatically has parental responsibility.
An unmarried father will only attain 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 from the court 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
It is therefore important to ensure that if you are the father of any children and none of the above been satisfied that an agreement is reached with your partner in this regard to ensure you retain parental responsibility post separation to enable you to continue to play an active role in your child’s upbringing.
If you are cohabiting you will have no automatic right to inheritance if your partner dies. However you will do so if you are named as beneficiary under the other person’s will. If you are not named as a beneficiary but have lived together for at least two years and can evidence that you were financially dependent on your partner then you may be able to make a financial claim. However, this could involve protracted litigation if the other beneficiaries dispute your claim and you could only be entitled to a very limited settlement.
This is also relevant in the case of a jointly owned home. There are two ways in which property can be owned – as joint tenants or tenants in common. If you own your home as joint tenants, you will automatically attain your partner’s share in the property if they die under the principle known as the right of survivorship. If you own the home as tenants in common, your partner’s share (equal or otherwise) will pass to the person named as beneficiary under their will.
You will also not be entitled to certain state benefits which may be claimed by spouses on death nor will you be able to claim your partner’s state pension. You may be entitled to benefit from any private pension or life insurance but this will very much depend on the terms and conditions of the respective provider.
It is therefore imperative that you prepare a will to ensure your assets are distributed in accordance with your wishes. It should however be noted that a will can be changed at any point during a person’s lifetime.
If there are a number of the above issues to be dealt with, the best way to record them is by entering into a cohabitation agreement. These agreements can be as simple or detailed as required and can record everything from the extent of any beneficial interest in the property to who should undertake any day to day tasks.
This will ensure there is a record of any agreement reached in an effort to minimise any potential for dispute or costly litigation if a separation should unfortunately occur in the future.