Cohabitation – More and more people are living together
Cohabitation is on the up. The number of people living together without actually getting married has been steadily on the increase consistently since the 1970s. The latest government statistics on cohabitation released in March 2022, showed around 3.6 million couples (that’s 7.2 million adults) living together. That’s about one in five families, and it represents a huge social change – with the number of Britons cohabiting having more than doubled from 3 million just 20 years ago. In contrast, very few of those living together have even thought of a cohabitation agreement, let alone had one drawn up by a specialist family law solicitor.
And the trend clearly continues to grow. According to the latest figures from the Office for National Statistics, living together is more common among younger age groups; 69.2% of those between 16 to 29 years old who were living as a couple were cohabiting. That compares with just 4.5% of those who are 70 years or more living in a couple as cohabitees, outside marriage.
What’s more, according to nationwide poll published in November 2023 and carried out for Resolution (the country’s leading organisation representing family lawyers), almost half (47%) of cohabitees were simply not aware that they had no legal rights if they separate. And research by market research firm ComRes, found only around one in three couples were actually aware that common law marriage simply doesn’t exist, and that as a result people living together have no automatic legal rights. Research also shows that even when unmarried people know what the law says, they often ignore simple practical safeguards – such as ensuring they are registered as the co-owner of the house they share.
So most of those living together clearly aren’t getting the right legal advice on cohabitation.
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Living Together – You could be at risk
If a married couple decide to go their separate ways, there are divorce laws, rules and procedures in place which set out how joint assets, or even debts, are distributed. Similar rules apply to civil partnership dissolution.
But what happens with unmarried couples who have been cohabiting?
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.
Cohabitation – ‘Common law marriage’ does not exist
The simple answer is that there are no set rules or procedures in place. It is often therefore left to the couple to, sometimes quite literally, fight it out. If disputes cannot be resolved between the parties, it can frequently lead to costly and lengthy litigation, resulting in an increased financial and emotional burden.
In particular, simply living together doesn’t give you automatic rights over property. This is a common misconception and one which causes a lot of pain and misery. No matter how long you live with a person, you do not have the same property rights as a married couple – something you will find out to your cost if the relationship breaks down.
And unlike husband and wife, you can’t claim financial support for yourself if your relationship should fail.
But don’t just take our word for it about the risks for those couples who are living together. Here’s a comment made in the autumn of 2022 by the Chair of the Cohabitation Committee of Resolution. He said: ‘The lack of rights for cohabiting couples means millions of people – often women and others in society who are vulnerable – are at significant financial risk if their relationship ends or their partner passes away.
Living together – What’s the biggest problem?
When it comes to couples living together, the two biggest issues are property and inheritance. In particular when it comes to finances and property, it’s not always clear who actually owns what – which can create real problems when a relationship ends. And when it comes to inheritance – unless you’re specifically named in a will, you’re not automatically entitled to any share of your deceased partner’s estate.
No Cohabitation Agreement – Are you aware?
• If you are home owner – who will end up with the property if you split up?
• If you are a home owner – you may be vulnerable to an unnecessarily high Inheritance Tax bill?
• If you are a tenant and your name is not on the lease will you be homeless if you split up or your partner dies?
• What would happen if you died? Does your partner risk being left homeless?
• There is no such thing as ‘common law marriage’?
• If you are an unmarried father are you aware that you may have no legal rights over your own children?
Given how many British adults now co-habit, the big question is how many of them have actually taken any legal advice on their legal position? Probably, very few.
The sensible thing to do is to take advice from a specialist family solicitor.
Cohabitation – Our Legal Advice – How we can help protect your position
Bonallack & Bishop have particular expertise dealing with issues surrounding cohabitation – involving family law, property matters, wills and tax issues.
Our specialist Family Law team is the largest in Salisbury, Andover, Amesbury and Fordingbridge and provides expert legal advice to clients on a range of family law issues both locally throughout Wiltshire, Hampshire and Dorset and further afield.
Cohabitation and Protecting Home Owners
If you are a home owner you need to carefully consider your position. Do not assume just because you pay the mortgage that the house is yours. If you split up and both your names are on the deeds do you wish the house to be sold and divided equally immediately? Equally, if your name is not on the deeds are you aware that if you split up or if your partner dies you could end up homeless?
Using our specialist knowledge of property law we can help you.
In particular, the two of you may well have agreed to share ownership of the property. however if your agreement was only verbal, it can sometimes be difficult to prove – the two of you may have different views on what was actually agreed.
What happens to jointly owned property if we break up?
Sadly life does not always go smoothly. Like divorce, the relationships of those living together outside marriage can fall apart. And when it does, that can cause real problems with any jointly owned house or flat.
Click here to read more about Joint Property Ownership Disputes and the differences between joint tenancy and tenancy in common
If you rent your home then who will end up with it if you split up? Equally, if your name is not on the lease and your partner dies or you split up then you risk finding yourself homeless. We can advise on the appropriate solution.
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.
Click here to read more about UK inheritance claims
Tax Planning for cohabitees
Inheritance tax no longer just affects the rich. With 2018 figures showing that the average house is worth over £225,000, co-habitees are especially vulnerable to large inheritance tax bills as they do not have the benefit of the special exemption available only to married couples. Proper advice from our tax planning solicitors incorporated into a Will can protect your position – and may save you many thousands of pounds.
If you are currently living together but thinking of getting married you might want legal advice on a prenuptial agreement. These are becoming increasingly popular. Although pre-nuptial agreements are not legally binding in England and Wales if they are prepared in accordance with the guidelines. However, if a pre-nup is challenged it will record the parties intention upon separation.
Although, we often hear about pre-nuptial agreements being entered into prior to a marriage, it is also possible for post-nuptial agreements to be prepared after a marriage takes place.
Living together and bank accounts?
Unless you have joint accounts, and even if your partner currently allows you to access cash in their account, if that account is in your partner’s sole name, it’s easy to cut you off.
However, on the other hand, if your bank account is actually in joint names, when one of you die the other will automatically be entitled to the balance and will continue to have access to that account.
Cohabitation Agreements – getting the right legal advice
These formal legal documents (also referred to as living together agreements) are also gaining in popularity. If you live together and want to set out your wishes on the distribution of your property in the event that your relationship ends, contact our specialist family solicitors. Comparable to a UK pre-nuptial agreement, a cohabitation agreement is a signed agreement between the parties which stipulates what will happen upon the couple decide to part company.
Most cohabitation agreements are concerned with how property is held by each partner. However, an agreement can also be used to set ground rules for the relationship as a whole, eg, who will pay for the mortgage and in what proportion, who will pay for food and home improvements, and so on. And some cohabitation agreements also set out arrangements for future care of any children of the family should the couple split.
You can also decide if the agreement is to be treated as a legally binding document, or as a set of guidelines to work from.
It is also very important to also state how long the cohabitation agreement is to last. As the document may have an expiry date, it is fundamental that it is kept updated and renewed when necessary. Most cohabitation agreements will be formed as a deed (i.e. signed as a deed in the presence of an independent witnesses, often lawyers) thus making it legally binding.
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.
It’s also important to keep your cohabitation agreement up to date, so that it always reflects your current circumstances. Some people build in an automatic review date, so that the agreement will be updated if you have children, for instance.
Although cohabitation agreements can seem rather soulless, you never know their potential worth – it’s always better to have a plan and not need it than to need it and not have it !
A cohabitation agreement prepared by specialist family lawyers can be prepared for much less than you think and could save you thousands of pounds in the event of a disagreeable separation.
Remember – Do not be fooled. There is no such thing as a ‘common law marriage’.
Unmarried Fathers and children of the family
The legal position following a relationship breakdown when the couple are living together without having been married, only gets more complicated when there are children of the family.
If your relationship breaks down and if you decide to separate, then the two of you can, of course, come to your own informal agreement as to both who the children live with and how contact arrangements work.
But are you aware that unmarried fathers do not automatically have any rights at all over their own children unless that child was born after December 1st 2004 and the father is named on the birth certificate?
Our expert family solicitors can advise on your position and on the availability of Parental Responsibility Agreements and Residence Orders.
What’s more, if your relationship ends, what arrangements will you put in place for any children you have together? It is better to decide these things calmly and rationally in advance, rather than trying to think about them in the traumatic aftermath of a relationship breakdown.
Click here to find out more about the law and children
Appointing a guardian for your child
Depending on your particular circumstances, a child’s mother may decide to appoint a guardian to look after a child if she dies first. Dad can also appoint a guardian to care for the child on his death – but only if he has parental responsibility.
Contact our family lawyers for more information about how to appoint a guardian
Cohabitation and Adopting a Child
Living together does not affect your adoption rights. Both cohabiting and married couples can make an application to adopt a child together.
Next of kin status
if you’re not married or in a civil partnership, you may find that you’re not considered as your partners “next-of-kin” unless you and your partner have made a written agreement beforehand. This can can be particularly important when the question of next of kin status may be necessary to give consent to a medical procedure.
For married couples, any pension pot is divided to provide both parties with an income, regardless of whose were the largest or who made the longest contributions. For unmarried couples, no rights to claim a share of each others’ pension exist – and what is more, many providers do not allow for a widow(er)’s pension to be paid to an unmarried person on their partner’s death.
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.
Dealing with debts
Debts can pre-date a relationship, or they can arise during the course of it. In any event, it’s a good idea to set out exactly who is responsible for them should you split up. Your relationship may end, but your creditors will still want their money, so be prepared for this.
If a married person dies intestate (i.e. without having created a valid will) then their estate, including their property, will pass to their spouse or civil partner (subject to intestacy rules). However, if an unmarried cohabiting partner dies, the property belongs to the deceased’s estate and thus his/her family (according to intestacy rules), not the cohabiting partner.
In situations such as these the vulnerable cohabiting partner will need to go to court to fight over the smallest of assets to try to prove that their ownership. Inheritance claims like these are very expensive and highly stressful. Avoid them if you can.
Although the Law Commission is looking at changing the law surrounding this area, there have been no substantial developments as yet. As a consequence of this, couples should protect themselves using tools such as cohabitation agreements.
So if you do not make a Will, your property and other assets may not pass to whom you want and, in particular, your partner risks being left homeless – the only option may be expensive litigation without a guaranteed outcome.
Our advice is simple – we strongly advise you consider a Will as soon as possible to clarify how you wish to provide for your partner upon your death.
Click here to find out more about making a will
Living together, tax planning and inheritance tax
Tax planning is particularly important if you are together, especially if you own your own home or have substantial assets. Why?
That’s because if you inherit money or property from an unmarried partner, unlike a married couple, you will not qualify for the exemption from paying inheritance tax.
And that’s why if you are living together, it’s particularly important to regularly review your will and include tax planning in the process.
Click here to read more about Tax and Estate Planning
Apart from a cohabitation agreement, are there any other ways of protecting the rights of cohabiting couples?
Apart from a cohabitation agreement, there are 4 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.