Living together or buying a first home as a couple is a big step and it is easy to get caught up in the excitement of house hunting and choosing furniture. However, without a formal agreement, such as a cohabitation agreement, also known as a living together agreement, you put yourself at financial risk if you decide to separate, especially when it comes to matters related to family law.
Despite popular belief the term ‘common law spouse’, ‘common law partner’ or a ‘common law marriage’, does not exist. Therefore, the rights a married couple have do not apply if you are living as “cohabitees”. This also means that you have no claim on pensions or on each other’s assets.
What is Cohabitation in the UK?
Cohabiting in the UK is defined as an unmarried couple who are living together in a long-term relationship, which resembles a marriage.
Unmarried partners are often referred to as living in ‘cohabitation’. They can share finances, children, property and possessions, as a married couple would, but they do not have the same legal rights. This applies to same both heterosexual and same sex couples.
What Are the Challenges as a Common Law Partner?
Property & Possessions
As a cohabiting couple are not married, they do not need to formally separate. Therefore, they do not need to divide up their assets and finances as a married couple would, unless assets are owned in their joint names.
This means if possessions or property are held in sole names, legally the starting point is that these belong to that person and it may be difficult to prove they were paid for jointly or that the other person has an interest in them.
Any items owned by you prior to the relationship or which you have purchased yourself or received as gifts yourself are usually deemed to be yours.
If one of you already owns property and the bills have been set up before your partner moves in, it is still very important to discuss what each of you will pay and the implications this will have. You will not accrue an interest in the property by simply living there for a lengthy period of time.
You would only accrue a possible beneficial interest in the property if you contributed to, for example, improvements to the property that added to its value or mortgage payments. , Simple decoration would not result in your accruing an interest in the property.
If you are living together and you and your partner have separate bank accounts, neither of you have the right to access money held in the other partner’s account.
If you open a joint account, even if you do not use this account, and the account runs into overdraft you are jointly liable for such an overdraft though.
If one of you passed away, your cohabitee’s possessions and/or property, would pass under the intestacy rules to their next of kin, unless they had made a Will saying something different.
If a property was held in their sole name you would have no automatic right to reside in the property. It is therefore vital for both of you to make Wills to protect the other on death of the other party.
If you have Children, the father does not automatically have parental responsibility in the same way as you would if you were married, unless the father is named on the birth certificate.
What Happens if you Purchase Property and are Unmarried?
If you are purchasing a property as cohabitees you will need to decide whether to own it as “Joint Tenants” or “Tenants in Common”. Tenants in Common means that you will own specific shares in the property, and you can specify if one of you owns a larger share if a larger sum has been put into it for example
If you contribute to the purchase in unequal shares but purchase it as what is known as “Joint Tenants”, on separation the property could be divided equally, whatever contributions had been made to the purchase and could leave one of you feeling that you have been treated unfairly. The Right of Survivorship will also apply, which means that the whole property could pass to the other person if one of you dies. It is therefore essential to obtain advice before a property is purchased.
How can I Protect Myself as a Common Law Partner?
The best way to avoid disputes is to agree who owns what, who will pay what and what will happen should the two of you separate in the future and record this agreement in writing in a ‘cohabitation agreement’. This is where a Family Law Solicitor can help.
What Will a Cohabitation Agreement do?
A cohabitation agreement is a legal document that outlines the rights and responsibilities of couples who are living together but are not married. It can provide protection for both partners in case the relationship breaks down.
The agreement can record essential facts regarding ownership of assets and arrangements for division if the relationship ends. Couples who live together without being married have fewer legal rights than those who are in a civil partnership or married, making a cohabitation agreement an important document to protect their interests.
What does a Cohabitation Agreement cover?
Cohabitation agreements generally cover:
– Ownership of property
– Ownership of personal belongings
– Contribution to finances, mortgage/rent, household expenses etc
– How to resolve ownership of joint accounts
– Issues relating to children i.e. who they will live with, spend time with and financial provision on separation in the future
However, they can also cover:
– Payment of debts
– Rights under pensions
Cohabitation agreements are a legal document that eliminate the potential for disputes and the substantial financial and emotional costs that litigation incurs.
Agreeing who owns what and documenting it, provides more certainty and reassurance.
What Should be Included in a Cohabitation Agreement?
Each cohabitation agreement is different and should be tailored to on your individual circumstances. However, there are a few key areas you must consider when creating a Cohabitation Agreement:
Property owned before moving in together
If one party owns property prior to moving in together, a cohabitation agreement can agree for this to be kept separate and prevent the other partner from having a claim over it if you were to separate.
However, if the partner who does not own the property makes contributions to the mortgage or carries out renovation work, they could have a claim to the property in the future. Every case is different which is why it is important to obtain advice from a specialist family solicitor.
If you and your partner are not joint owners of your home, or one of you contributes more than the other, one of you could agree to contribute to the mortgage but acknowledge that this will not give that person any claim over the property.
Property bought while living together
If you buy a property while living with your partner and only one of you is named on the deeds, a cohabitation agreement can agree for this to be kept separate and prevent the other partner from having a claim over it if you were to separate, same as stated earlier.
If you are named as joint owners, you are both legally entitled to stay in the property if you should break up in most circumstances.
Inheritance and wills
it’s important to remember that if you are not married or in a civil partnership, you will not automatically inherit each other’s estates if one of you dies. This will be dictated by the rules of intestacy. If you want to leave anything to your partner, you will need to draw up a Will and keep it up to date.
Joint bank accounts
If you have a joint account, then both you and your partner have access to the account, regardless of whether only one of you pays into it.
On the death of one partner, the whole account immediately becomes the property of the other unless a Will states otherwise.
How to Create a Cohabitation Agreement
A Family Law Solicitor can draft a cohabitation agreement that is tailored to your situation and relationship.
An estate planning Solicitor can draft a Will, create a Trust, and register a Power of Attorney if needed, to fully protect you and your family with a written agreement.
If you separate, a Solicitor can also help negotiate a financial settlement and can help investigate your position and advise you on all key issues, such as:
– Provision for children, including trusts, child support, mediation and orders relating to children, known as Child Arrangement Orders which cover who a child lives with and spends time with (previously known as Residence and Contact Orders).
Can I Create my own Cohabitation Agreement?
Yes, it is possible to draw up your own cohabitation agreement. However, it is recommended to consult with Family Law Solicitor to ensure that the agreement is legally binding and covers all necessary aspects.
Cohabitation agreements can vary depending on the specific circumstances, so it’s important to have a thorough understanding of the legal requirements and implications. A Family Law Solicitor can help you navigate through the process and provide guidance on what should be included in the agreement to protect your rights and interests.
Is a Cohabitation Agreement Legally Binding?
Cohabitation Agreements can be legally binding if they meet certain requirements. To ensure that a cohabitation agreement is legally binding, it is important to consult with a Family Law Solicitor. They can provide guidance on the specific requirements and help draft an agreement that will hold up in court if necessary.
Cohabitation Agreement Cost
The cost of a cohabitation agreement can vary depending on the complexity of the couple’s affairs. It is recommended that each party receives legal advice before signing anything, as this increases the likelihood that the agreement will be upheld in court if the couple breaks up.
While some may choose to draw up their own cohabitation agreement, it is important to ensure that all legal requirements are met to avoid any potential issues in the future.
Should I Make a Will?
If there is no Will, then the rules of intestacy will ultimately determine how a deceased’s assets are distributed.
If you aren’t married and one of you were to pass away, the partner left behind wouldn’t automatically have any right to property or assets owned by their partner that are left behind (such as your home).
Making a Will is a good way to make sure that your partner is considered as part of any inheritance you leave.
Cohabiting couples with valid Wills in place should be aware that subsequent marriage or formation of a civil partnership will automatically revoke their Will, unless the documents state that they are made in expectation of marriage or formation of a civil partnership. See more in our article Making a Will – What you need to know.
How Our Family Law Solicitors Can Help
To understand your specific legal rights as a cohabitee , it is important to consult with a Family Law Solicitor. They can provide you with accurate and up-to-date information based on your specific circumstances.
You should always seek legal advice if you have any worries about ownership of assets and finances or your rights in an unmarried relationship.
A Family Law Solicitor can not only offer advice on how to protect your own interests but help you draft a cohabitation agreement and give advice on how to legally manage your assets with your partner.
At Howells, we have a long history of advising married and unmarried couples, and we can prepare cohabitation contracts or living together agreements, together with a Will, and give legal advice on estate planning to protect your family.
Our Family Law department offers a free 30-minute consultation, fixed fees where appropriate and flexible appointments to suit your needs.
You can email Howells to make an appointment at email@example.com or call us:
Sheffield: 0114 249 66 66
Barnsley: 0122 680 51 90
Rotherham: 0170 936 40 00
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