Cohabitation – what happens if we separate?
According to the latest statistics, an estimated 3.3 million couples in the UK now cohabit – that’s around 20% of families. Yet very little in the way of legal protection exists for unmarried partners however long they have been together.
What’s worse is that a belief that unmarried couples have the same rights still appears to be remarkably common. In fact, specialist national family law solicitors group, Resolution, report that up to 90% of its members find cohabiting couples are often surprised to discover their lack of legal protection
As long ago as 2007 the Law Commission called for new legal rights for people living together in long-term relationships, but the government has yet to action any changes.
So in the meantime, what can cohabitees do to protect themselves?
One potential solution would be for both parties be to enter into what is known as a Cohabitation Agreement.
Here at Bonallack and Bishop, that first phone call, and your first 30 minute appointment, are both FREE for advice on cohabitation or any other aspect of family law. So call or email us now.
What is cohabitation?
There is not actually a legal definition of cohabitation – however broadly it simply means living together as a couple without being married.
What is a cohabitation agreement?
A cohabitation agreement is a formal legal document (sometimes called a living together agreement) which broadly sets out the wishes of both parties with regard to a range of family issues – including money, property and how any children of the family would be cared for should the relationship breakdown.
The agreement can also make a note of the parties’ assets at the time of entering into the agreement. This might be relevant for example, where one party owns the house and the other does not; you may wish to specify that this remains the case upon breakdown of the relationship – unlike the situation created with marriage, in which the non-owner can claim a share in the equity.
Living together but breaking up – How is our property divided?
Perhaps the biggest problem with unmarried couples and their finances and property, is that it isn’t always clear who owns what when their relationship breaks down.
For married couples, any property becomes matrimonial property regardless of whose name it is in and is therefore shared equally on divorce.
For unmarried couples, the situation is different – the original owner remains as such. Any claims by the other party must be supported by clear evidence of entitlement, the only exception being if there are children.
One common problem, for example is where one partner has made substantial financial contributions by paying living expenses such as food and utility bills, but the other partner is the only name on the title deeds of any property they own. In that situation, the partner who is not named on the title deeds would not have any legal protection, despite putting substantial financial input into the relationship.
If the owner dies the family home will go to whoever they named in their will or their nearest blood relative, but if the non-owner may be able to make an inheritance claim under the Inheritance Act if they act swiftly (Click here to read more about making a will ).
The division of property is often the main bone of contention when cohabiting couples split up, so you can use your cohabitation agreement to set out exactly who owns what.
Most couples use this as an opportunity to make arrangements for larger assets, such as jointly owned houses. Think about how you will divide the proceeds of the sale of any property you jointly own if you split up, or if one partner will need to buy out the other if they remain in the property.
To protect yourself, always make sure you seek appropriate protection (e.g. putting your name on the title deeds) before putting money into any property with your cohabitee, regardless of whether you are buying a new property together or putting in money to renovate or improve your existing home.
You can put as much detail as you feel is necessary into a cohabitation agreement, so if you want to set out an exact division of the vinyl record collection, do so!
Other Assets
Any assets are deemed matrimonial assets and therefore shared equally in the event of divorce.
For unmarried couples, any assets you own will remain in your name expect in the case of a savings account(s) where the other party has made contributions and there is clear supporting evidence demonstrating this.
Cohabitation and Income
For a married couple both parties’ incomes will be taken into account and financial support may be provided if one is considered to be in a much stronger financial position than the other.
Again, for unmarried couples no legal obligation currently exists for financial support on separation unless they have children in which case different regulations apply.
Cohabitation and Children
Following the introduction of The Child Support Act in 1991, both parents are financially responsible for their biological or adopted children regardless of marriage or cohabitation. Upon separation, a non-resident parent (often the father) is required to pay Child Support to the primary care giver (often the mother).
Are there any other ways of protecting the rights of cohabiting couples?
Apart from a cohabitation agreement, there are 3 principal ways to deal with this potential problem
- Regularly updated wills – setting out the intentions of both partners with regard to inheriting the others property
- Life insurance can be taken out in favour of the other cohabitee
- When property is bought jointly, and if both parties want to own the property, and it’s important for both names to be on the deeds to the house or flat. A decision will also need to be made as to whether property should be held jointly (in which case one partner is automatically entitled to their partner share on the death of that partner) or whether the shares should be held independently – in which case share each partner can be left under a will and is not automatically passed to the surviving partner. It’s also worth considering a declaration of trust if the partners intend to own the property in an equal share
- Renting Property? Make sure that you are joint tenants – with both of your names on the lease.
Do I have an automatic right of inheritance if my cohabitee dies?
Unless your partner has actually named you in their will, you are not automatically entitled to inherit any of their property.
It may be possible to make an inheritance claim on the deceased partner’s estate, particularly if no will was left. But if a will was left, that kind of claim becomes particularly difficult.
What’s more, inheritance claims can prove very expensive and what’s worse, can sadly split families forever.
Summary
The contrast in the rights of married versus unmarried couples highlights the latter’s vulnerable position upon separation and court intervention in personal disputes without prior legal protection is very rare. A similar position applies for gay couples living together – with those who are going through a “civil partnership divorce” [or civil partnership dissolution to give it its proper name ] being treated by the law in a similar fashion to heterosexual couples going through divorce.
If you are thinking of separating, our specialist family law team [including a family lawyer trained in both collaborative law and family mediation] can provide you with the expert legal advice you need and can help you to put in place an agreement to do just that.
Signing a cohabitation agreement or making sure you have an up-to-date will covering your partner, for example, are easy and cost effective ways to get financial peace of mind without getting married or entering into a civil partnership.
If you are living together with your partner but you are not married, don’t delay. Make sure you have your legal position covered as soon as possible.
Considering a cohabitation agreement – call us now
For more information about cohabitation agreements and how they can protect you – get in touch with our specialist Dorset, Hampshire and Wiltshire family lawyers and arrange a FREE first 30 minute appointment;
- Call us now on FREEPHONE 0800 1404544 or
- OR e-mail our team using the contact form below
