It is a commonly held belief that if a couple lives together for a long time as cohabitees, they have the same rights as married couples or civil partners. This is untrue. Unmarried cohabiting couples, regardless of how long they have lived together, have far fewer rights than those who are married. “Common law marriages”, as they are generally called, are not recognised legally in the UK.
Recent figures released in January 2024 by the Office for National Statistics have shown a sharp rise in cohabitation, with the proportion of married people in England and Wales falling below 50% for the first time. Clearly, this demonstrates a shift in the relationship landscape, with couples now more likely to move in together before getting married.
The number of people living together but not in a civil partnership or marriage increased by 1.4m between 2012 and 2022, a sizeable jump. This has sparked calls for greater rights and protections for cohabiting couples, which could include treating cohabitees the same as married couples for tax purposes, as well as giving them the right to inherit under the intestacy rules.
Sadly, not all relationships will last, so it is important for couples to ensure that they are well-aware of their legal rights should they break up.
What will happen to our home if we separate as cohabitees?
This depends on whether you and your partner jointly own the property or whether it is solely owned.
If you are joint tenants, you will normally have equal property rights. And if you are tenants in common, where you each own a share of the property, you will each be entitled to your share.
If the property is solely owned by one party, they will continue to have legal ownership of the property and the other party will not have any rights unless it can be shown that they have an equitable interest in the property. Beneficial interest can be created if the non-owning party:
- Contributed to the purchase of the property, or
- Made financial contributions to mortgage payments, house renovations etc, where it can be shown that there was a common intention to share ownership of the property.
What will happen to our bank accounts?
This again, depends on whether the account is in joint names. If the account is jointly owned, both parties will have an equal entitlement to it. However, if the account is solely owned, the other party will not have access to it.
What will happen to our children?
The mother will automatically have parental responsibility. The unmarried father will have parental responsibility if he is named on the child’s birth certificate, or if he is in a parental responsibility agreement with the mother.
Unmarried cohabitants can apply to the court to obtain financial support from the other party for the benefit of the child. Under Schedule 1 of the Children Act 1989, the court will be able to make the financial orders such as:
- Lump sum payment
- Transfer of property
- Periodical payments
Claims could be made under the Trusts of Land and Appointment of Trustees Act 1996 as well.
Why should I enter a cohabitation agreement?
Unmarried cohabitants can enter into a cohabitation agreement to protect their rights in a cohabiting relationship. This is an especially good idea if you and your partner decide that you want to co-exist as cohabitees without getting married or entering into a civil partnership. A cohabitation agreement is a legal contract which normally sets out shared responsibilities between the couple and regulates how shared assets and properties between them should be divided if their relationship breaks down.
This gives couples the certainty of knowing what will happen if they separate in the future and can prevent disagreements from arising. It is essential to obtain professional legal advice as such agreements have to be drafted and executed properly so to ensure that it is legally binding.
If you are concerned that either you or your partner may die, it is also worth considering making a will. This will allow your partner to inherit your estate in the event that this happens.
If you are currently in a cohabiting relationship and want to safeguard your rights and interests by having a cohabitation agreement, please contact us. Our team of specialist family law solicitors have many years of experience and would be able to give you the advice you need.
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