Cohabitation and your lack of legal rights

Lawpack on March 27, 2020

In today’s modern society marriage isn’t for everyone, and some couples prefer not to tie the knot. But marriage and civil partnership provides certain legal rights that cohabitation does not, even though figures show there are more than four million unmarried people living with a partner in England and Wales.

Calls for equality

Lord Justice Sir Nicholas Wall recently called for greater rights for cohabiting couples, claiming that under current laws unmarried men and women are at risk of losing their homes and their incomes in the event of a break-up.

As the president of the Family Division of the High Court, his demands have commanded attention, and the issue of equality for cohabiting couples has been thrust firmly back into the spotlight.

Specifically, he advocated the creation of a cohabitation law, which would give unmarried couples who live together the same legal rights as those who are married when it comes to division of property and other assets.

“I am in favour of cohabitees having rights because of the injustice of the present situation,” he told The Times newspaper.

“Women cohabitees in particular are severely disadvantaged by being unable to claim maintenance and having their property rights determined by the conventional laws of trusts,” Sir Nicholas remarked.

He claimed that courts are already being more sympathetic towards people who have lived with their partners for many years before their relationships come to an end.

And equally, he explained: “If cohabitation has been short and the contribution minimal, judges would not be sympathetic to a claim.”

Understanding your rights

Despite these changes in attitude, it could be some time before a cohabitation law is introduced. It is therefore important that those who choose not to marry, for whatever reason, understand what they are and are not entitled to.

Many cohabitees wrongly believe that they have the legal protection of common law marriage and that the longer they live with their partner, the more rights they have.

In fact, common law marriage is a myth and hasn’t existed in England and Wales since 1753. Legal rights for unmarried couples are minimal, regardless of whether couples have cohabited for one year or several decades.

So what rights don’t you have as an unmarried cohabitee that a husband or wife would have in the event of a break-up?

Maintenance

At the moment, if you have any children with your ex-partner, he or she must pay maintenance in the same way they would if you were married.

However, you are not entitled to any maintenance for your own benefit, even if you have given up work to take care of your offspring.

Property

If you rent your home with your partner and he or she asks you to leave following a split, you will have no rights to stay in the property if the lease is in their name.

Similarly, if your partner owns your home and there is no legal documentation in place to prove that you own any share in it, you will have no rights to remain in the house or reap any rewards from its sale.

Other assets

Partners who live together often have joint savings, investments and personal possessions. If you are married and you divorce, these assets are usually split equally. If you are simply cohabiting, things are much more complicated.

In essence, you have no legal rights to any assets that are not in your name and your ex is likely to walk away with all savings and possessions built up out of their own money.

Death

Although couples don’t like to think about it, the death of a partner is something that should always be taken into consideration when planning for the future.

Indeed, it may not always be a break-up that brings a partnership to an end. If one half of an unmarried couple dies, the surviving partner will again have few legal rights to property and assets.

Unless your partner has made a will, you will not automatically inherit anything from them in the event of their passing, regardless of how long you’ve been together.

You will also receive no state bereavement benefit of a state pension based on a percentage of their National Insurance contributions as a husband or wife would.

Furthermore, anything you do inherit through your partner will is subject to inheritance tax if it totals more than the current £325,000 threshold, as spousal exemption will not apply.

What can you do to protect yourself?

If you and your partner decide not to get married, there are still several ways you can protect yourselves legally.

For example, if you are renting a home together, it makes sense to put both names on the tenancy agreement.

If you are buying a home with your partner, or moving into one he or she already owns, you need to consider whether signing as joint tenants or tenants in common is the best option, as there are different legal rights associated with each.

If you are joint tenants then you jointly own the entire property, whereas if you are tenants in common you each have a distinct share in the property and can decide in advance how you’d like this share to be split.

Drawing up a cohabitation agreement will also enable you and your partner to decide what will happen to your property and any other jointly-owned assets should you separate or suffer a bereavement.

A cohabitation agreement can also contain arrangements for child maintenance and custody if you have children together, as well as details of your responsibilities with regards to debts and everyday outgoings.

While cohabitation agreements are not legally binding, they can often be enforceable in court if a couple sought legal advice before signing it.

A court will take into account whether both parties understood the nature of the agreement, whether they were both fully aware of its contest and whether they intended that it should be legally enforceable.

You should also write a will to make sure yours or your partner’s assets will be distributed in the way you choose, rather than leaving the state to decide.

According to the latest research from Unbiased.co.uk, some 62 per cent of people in the UK have not yet written a will, and this includes married couples.

For cohabitees, will writing is arguably more important, because the laws of intestacy, or dying without a will, do not take cohabitation into account.

Instead of passing to you, as would happen if you were married, your deceased partner’s estate would automatically be passed to their relatives, unless they specify otherwise in their will.

Is the law likely to change?

If Lord Justice Sir Nicholas Wall’s calls are heard by lawmakers, it could be some time before legislation providing equal rights for cohabitees is passed.

New laws take time to pass through parliament and implementation can be a slow process. In addition, there will always be those who oppose such a law on the basis that marriage should not be given equal status as living together.

However, cohabitation remains a hot topic and, in the same way as same-sex couples in civil partnerships fought to gain equal rights with married heterosexual couples, cohabitees are also demanding legal protection.

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Cohabitation: how to buy property together

Lawpack on March 27, 2020

When you first decide to start living together and want to buy a property, romance is top on the agenda. The last thing on your mind is the legal aspects of living together. You can’t imagine not being together and, anyway, won’t you have automatic rights to the property?

But this isn’t always the case. You may think that couples living together have the same rights as married couples and that the law will protect you financially as you’re a ‘common law spouse’, but you have no financial rights if you separate or one of you dies.

So, when you decide to buy a property with your partner (in England and Wales), make sure that your conveyancing solicitor discusses with you, at the outset, whether you should own the property as ‘joint tenants’ or ‘tenants in common’. For cohabitees, the distinction is extremely important.

Joint tenants

If you own the property as joint tenants, this means that you will each have an equal interest in the property and if one of you dies before the other, the share of the person who has died will pass automatically to the other.

With a joint tenancy, even if you, or your partner, have made a will, the surviving partner will still receive their share of the property, whatever the will says. If neither of you have made a will and one of you dies ‘intestate’, which means that the assets will be distributed according to the ‘law of intestacy’, the surviving partner will still inherit the property.

You can find out more about the law of intestacy and making a will here.

But, apart from the property, you, as a cohabitee, will have no automatic rights to any of your partner’s other assets should they die. This is why it’s vital that you make a will.

Find out about the risk you take if you’re part of an unmarried couple and haven’t made a will or you can stop worrying and make a will today here.

Tenants in common

If you’re living together and owning the property as tenants in common, you don’t necessarily have equal shares. You may think this is appropriate if you have made unequal contributions towards the purchase price and want this to be reflected on the sale of the property.

Owning a property under a tenancy in common also means that your shares are separate from each other, which means that if one of you dies before the other, the share of the person who has died doesn’t pass automatically to the other, but instead passes according to the wishes of the Will the deceased partner made or the law of intestacy, as appropriate.

You can find out more about the law of intestacy and making a will here.

If you intend to hold the property as tenants in common, you should discuss with your conveyancer whether you should enter into a trust deed. They can draft one for you. This is a binding agreement regarding your property, valid in England and Wales, which means that you can regulate what will happen to the property in the event that you separate (e.g. on what terms one of you can be bought out).

Cohabitation in Scotland

In Scotland, the concepts of ‘joint tenants’ and ‘tenants in common’ don’t apply, although the law is similar. A couple living together can hold a property in joint names by stating in the title deed (using a survivorship clause) that each of them will leave the property to the other if one of them dies.

As with a joint tenancy in England and Wales, if the title deed includes this clause and one of you dies, the deceased’s share will pass to the other under this ‘survivorship destination’ in the title deed and not according to the will the deceased partner made, or the law of intestacy.

The survivorship clause is, in effect, a contract between you and you cannot revoke it unless you both agree, although if you are married, the survivorship clause has no effect if your marriage ends in divorce or is annulled.

But you can do so if there is a clause in the title deed which allows one of you to do this without the other’s consent. So it’s important to discuss the matter with each other and make it quite clear to a solicitor what type of survivorship clause you want.

Alternatively, cohabitees can hold a property in joint names without a survivorship clause in the title deed (similar to ‘tenants in common’ in England and Wales). You don’t have to have equal shares and if one of you dies, the deceased’s share doesn’t automatically pass to the other as survivor, but passes according to the wishes of the deceased’s Will or the law of intestacy, if your partner hasn’t made a will.