Unmarried couples are not afforded the same protection in law as married couples who are getting divorced, however there are steps cohabiting couples can take to protect their interests.
Despite the number of couples choosing to cohabit continuing to increase, the law does not afford them the same protections as married couples and instead, upon separation, or death, complex legal principles come to the fore.
What is the common law myth?
Unfortunately there continues to be a misconception in relation to the ‘common law marriage myth’ that after a couple have lived together for a number of years they acquire similar rights to a married couple by virtue of their cohabitation alone. This is incorrect and has no legal validity.
Moving in with a partner does not automatically give you the right to claim against the other’s property and/or possessions, savings or investments irrespective of the length of the relationship and whether you have any children. Cohabiting couples also have no legal duty to support each other financially. The differences between the rights of married couples and cohabitees were explored in depth within the House of Commons Report released in July 2022 can be found here. This article seeks to explore the key points cohabitees should be aware of.
Do you share ownership of property?
Buying a property together – ownership can be split equally or in specific shares with one person owning a larger share if they contribute more towards the deposit for instance. You can own a property as either:
· Joint Tenants – it is presumed you own the whole property together in equal shares.
· Tenants in Common – you can each own an equal or unequal share in the property.
If you own a property as Joint Tenants and one of you dies, the other will automatically in inherit the property, whereas if you own a property as Tenants in Common and one party dies the other will not automatically inherit their share (unless provision has been made in their Will).
Buying a property in your sole name – if the property you live in, or intend to live in, with your partner is in your sole name then your partner does not have any automatic rights to it, nor any right to remain living in the property if the relationship breaks down. However, there are certain circumstances where, upon separation, the non-owner can argue that they are entitled to what is known as a ‘beneficial interest’. This can be because of a financial contribution the non-owner may have made, such as paying for renovation works in part or in full. It is for the non-owning partner to prove they are entitled to a beneficial interest.
Does a non-owning partner have a right to occupy the home after separation?
Whilst married couples have an automatic right to live in the family home after separation, whether or not the property is owned in their sole or joint name, the right to occupy does not extend to unmarried couples. If you are unmarried and living in your partner’s property and a separation occurs, you will not be entitled to remain living there. The owner of the property can ask you to leave and can lawfully change the locks to the property.
Where a married couple separates and one spouse is a non-owner, they are able to register their Matrimonial Home Rights against the property thereby securing their beneficial interest. The same protection does not apply to unmarried couples.
Do you rent a property together?
If you are both named as the tenant on the tenancy agreement, this means you are jointly responsible for any rental payments and other terms under the tenancy. In the event you separate and you wish to leave the property, you should speak to your landlord or the lettings agency to request a change to the tenancy agreement.
What if one partner dies?
If your partner owned the property you lived in together you do not have an automatic right to remain living there. Cohabiting couples have no automatic right to inherit if their partner dies, although they may be a beneficiary under the other’s Will. There are limited circumstances in which, when a partner dies, the other may be able to bring a claim against their estate under the Inheritance (Provision for Family and Dependants) Act 1975. As a cohabitee you must prove your eligibility for bringing a claim and each case is individually considered.
There is no inheritance tax exemption for unmarried couples, meaning if you inherit money or property from your partner you are not exempt from incurring an inheritance tax liability.
What protections can be put in place?
To ensure you and your partner’s interests are protected, we recommend putting in place a Cohabitation Agreement and making or updating your Will. Cohabitation Agreements can be entered into by unmarried couples wishing to put in place an agreement that records their respective contributions or entitlements, such as what share of any owned property they are entitled to; if any.
The agreement should clearly evidence the intention of both parties so that they are fully aware of what will happen in the event the relationship breaks down, or one cohabitee dies.
If either party owns a property and it is agreed it shall be owned as Tenants in Common, it is also advisable to record your respective shares within a separate Declaration of Trust. A Declaration of Trust can be entered into at the start of a cohabiting relationship as a further protective measure to ensure you are both clear on your financial share of the property.
If there are children of the family it may be possible for the primary carer / resident parent to bring a Schedule 1 Children Act 1989 claim for financial support from the non-resident parent. Such a claim can only be in relation to the needs of any child or children and may be made until such time as they reach the age of 18. Schedule 1 claims are separate from entitlement to child maintenance which is payable by the non-resident parent in any case.
Setting aside time to think about what you would want to happen upon separation, or death, is difficult but it can be helpful to record your intentions within a Cohabitation Agreement to help prevent conflict later on.
Will a Cohabitation Agreement still be valid if we decide to marry?
A Cohabitation Agreement will only be valid until such time as you enter into legal marriage. If you intend on getting married, we would recommend entering into a Pre-Nuptial Agreement in good time before the marriage takes place. Nuptial agreements are important & useful to have should a marriage break down.
At Tozers we prepare tailored Cohabitation Agreements unique to you. They can also address day to day matters such as providing for your respective bank accounts to remain in your sole names, or for you each to pay into a joint bank account for household outgoings. It is always advisable to review your agreement and update it as and when your circumstances change.
