This article was published on November 20th, 2017
There are several urban myths about “cohabitee rights”. With an ever-increasing number of couples choosing to live their lives outside of marriage, this blog covers some of the issues which cohabitees may face.
Living together outside marriage no longer carries the stigma it used to. Recent ONS statistics show that the second largest family type is the “cohabiting couple family”. This is where a couple are living together but are not married or in a civil partnership. Over the last decade, the cohabiting couple family has been the fastest growing family type, more than doubling in number from 1.5 million in 1996 to 3.3 million in 2017. This is most likely due to the fact that many couples now chose to live together rather than marry, or they live together first before they marry, especially if they are younger.
The question is, if you cohabit with your loved one, what are your legal rights should your relationship break down irrevocably or if your partner passes away? Many people have heard the phrase ‘common law spouse’ and believe that if you live with your partner for a certain amount of time and better still have children with that person, then you become a ‘common law’ husband or wife with the same rights as a married couple. This is simply not true. Here are some uncomfortable truths for you to consider if you are currently in a cohabiting relationship:
Your home is likely to be your most important asset. The law assumes it is owned by whoever is named on the Land Registry title, so if your name is not on the title deeds, you would need to show that you and your partner agreed that you would have a share and you acted on that or that you made direct financial contributions, perhaps by contributing towards the deposit, or by helping meet the mortgage payments. This requires evidence which can be hard to gather and costly.
If you are the father of children born before 1 December 2003, you will not have Parental Responsibility. If your children were born after that date, you will only have Parental Responsibility for them if your name is registered on the birth certificate. If you do not have Parental Responsibility, you can only acquire it through a written formal agreement with the children’s mother or by obtaining an order from the court.
Unless you are a ‘joint owner of your home, you will not receive a share of it. If you own as “beneficial joint tenants”, the property will pass to you, but if you own as “tenants in common”, you will retain your share but your partner’s share will go into his or her estate. Unlike where the couple is married, a cohabitant is not recognised as next of kin, so unless he or she has provided for you by making a Will, you will not be entitled to any of the estate. Assets and property belonging to your partner will go to the next of kin i.e. children, parent, siblings or potentially another spouse if your partner has yet to be divorced.
In the unfortunate event that you are left with nothing, your only option would be to make a claim against your partner’s estate which can be stressful, costly and time-consuming, so to avoid all of this it is essential that you both make comprehensive Wills and that you should also consider a cohabitation contract, which is an enforceable agreement which confirms what will happen to assets should you separate.
Chris Bowen, Family Lawyer with Thorneycrofts comments that people livings in cohabitee relationships have little or no legal protection if they separate. This area of law needs an urgent overhaul but until that happens, it is all the more important to get legal advice about setting up home with your partner so that you do not find yourself at a disadvantage if your relationship fails or your partner dies.
For further information or advice on cohabitation agreements, Wills or any of our services then please call our family law team who will be happy to advise you on your legal rights on 0800 1979 345.