It is not uncommon for unmarried couples who are cohabiting, or living together, to believe they have legal, or “common law” rights when they separate. The reality is, there are no such rights, and couples who are either not married, or in a civil partnership, are not protected when their relationship ends. Not all couples are aware of this. Here, we take a look at what unmarried couples can do when they separate.
Need specialist family law advice?
Is there any legal protection for cohabiting couples?
There are approximately 3.6 million couples currently living together in the UK, with cohabitation the fastest growing type of family. Neither party in such a relationship is entitled to any financial support or a share in the other’s assets if the relationship ends. If one of you died, the other wouldn’t automatically be entitled to inherit their estate because cohabiting couples are not recognised under inheritance laws.
Even though cohabiting couples are not legally recognised in England and Wales, there are some steps that can be taken to protect your assets if the worst should happen. One way to make sure there is some legal protection in place is to enter into a cohabitation agreement.
What is a cohabitation agreement?
This is a legal document where you can set out who gets what in the event your relationship breaks down. If you have children, then a cohabitation agreement can also accommodate what happens to them, such as where and who they will live with, and when they will see the non-resident parent.
A cohabitation agreement puts everything in writing, so there is less chance of disagreement or uncertainty when you separate. Timing is important – if a cohabitation agreement is drawn up in advance, say when you are thinking about moving in together, the terms are likely to be more reasonable than if you wait until the relationship has broken down.
What is included in a cohabitation agreement?
A cohabitation agreement is a legally binding contract between two individuals who are living together but are not married or in a civil partnership. It sets out the terms of their living arrangement and can include a range of provisions related to financial and property matters. A cohabitation agreement can:
- Set out how ownership of any shared property and how it will be divided, including the percentage of ownership and the method of valuation in the event of a sale or transfer.
- Detail the financial contributions each party will make towards household expenses, including bills, rent, and other shared costs.
- Specify which personal property each party owns and how any jointly acquired property will be divided in the event of a separation.
- Provide for maintenance and support in the event of a separation, including any financial assistance for children. It is important to remember there is no law requiring separating unmarried couples to provide financial support to the other, although they can make provision by agreement, and are legally required to financially support any children.
- Set out where any children will live, and which parent will have the day to day care. It can also detail when the non-resident parent will see the children, and take them on holiday.
- Outline a process for resolving any disputes that may arise between the parties, including mediation or arbitration.
- Set out the circumstances under which the agreement will terminate, such as marriage, civil partnership, or the end of cohabitation.
It is important to note that a cohabitation agreement must be fair and reasonable to both parties, and each party should seek independent legal advice before signing. Additionally, the agreement may need to be updated periodically to reflect any changes in the parties’ circumstances, such as having another child, or the law.
What rights do unmarried couples have with regard to property?
If you jointly own your home, then you are both entitled to continue living in the property after you have separated until you decide what to do with it. If the property is owned jointly, then you should establish if it is owned as Tenants in Common or as Joint Tenants. This can usually be found out very quickly by obtaining documents from the Land Registry.
Joint Tenants: if you own the property in this way, then you do not own shares in it, but are considered to be equal and joint owners on a 50:50 basis.
Tenants in Common: if you own the property in this way, then each of you own shares in the property. This can be shared equally (50:50) or in some other way, e.g., 70:30. If the property is owned in non-equal shares, then there is usually a document called a Declaration of Trust setting out exactly how the property is shared. If there is no evidence regarding shares in such a document, then there is a presumption that the property is owned equally between you.
There are some circumstances where it is possible to show that a subsequent agreement between a couple should be considered. For example, if on the face of it the property appears to be owned equally, but upon examination, there is a reason this is not the case. Such claims depend on the circumstances of the case and can be extremely difficult to establish. The burden of proof will be upon the person attempting to show that a subsequent agreement demonstrating this should be taken into account.
What if the property is owned in my partner’s sole name?
If there is no document confirming you have an interest in the property, such as a Declaration of Trust, you may still be able to show you should have an interest, providing you can demonstrate that:
- There was a common intention between you and your partner that you would have an interest in the property, and you have acted to your detriment in reliance on this. Perhaps you paid a significant sum towards a deposit or paid for extensive refurbishments.
OR
- You were led to understand by your partner that you had an interest in the property and, because of this, you acted to your detriment. Again, this could be by providing an injection of cash.
Before buying a property together, it is important to ensure you have an open discussion with your partner about whether it is intended that you should obtain a beneficial interest. If so, make sure you get this in writing, so that if the worst happens, you can back up your claims with evidence.
Do I have the right to remain living in our rented home?
Fewer and fewer people are able to buy their own homes these days, so what happens if you are living together in a rented property? Who gets to stay then?
If you are living with your partner in rented accommodation, and are not named on the tenancy agreement in your own right, then you will have no right to remain in the property if your partner asks you to leave.
However, if the tenancy agreement is in both names, you jointly have an equal right to remain living in the property. If necessary, it may be possible to transfer the joint tenancy into your partner’s sole name, or if they leave, your name, although the landlord would need to agree to change the tenancy agreement.
Can I force my partner to leave the home?
In certain circumstances, it may be possible to get a court order enabling you to remain in the former family home, although this must be done via issuing court proceedings. If you are thinking about obtaining an occupation order to protect your legal rights, then you should seek specialist legal advice.
What about our children? Do we have the same rights if we are not married?
Unmarried couples who have children together have the same parental rights and responsibilities as their married counterparts. Financial obligations surrounding the upkeep of children continue after the breakdown of a relationship, regardless of whether there is a divorce or the separation of a cohabiting couple.
Can I make a claim on my partner’s pension?
Generally speaking, unmarried couples do not have any right to benefit from their partner’s pension, unless they are formally named as a “nominated beneficiary”. Although in respect of the Local Government Pension Scheme, there is currently an exception to this rule.
Is the law likely to change for unmarried couples in the future?
If the Cohabitation Rights Bill becomes law, then it could change the situation regarding the legal rights of unmarried couples. Its main aim is to establish a framework of rights and responsibilities for couples living together who either have a dependent child, or have been cohabiting for a minimum of three years.
This would give couples the right to inherit their partner’s estate under intestacy rules (dying without making a will), apply to court for a financial settlement order if the relationship ends, and have an insurable interest in the life of their partner.
The bad news is that this is a private members’ bill and, as such, is extremely unlikely to progress beyond parliamentary debate.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
