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Cohabiting? Know your rights

Cohabiting? Know your rights

By Stephanie McAulay, Family Law Specialist

If you are living together with your partner but you are not married or in civil partnership, then you are ‘cohabiting’. Cohabitation is the fastest growing ‘family type’ in the UK and is an attractive option to many. A cohabiting couple can never be ‘common law married’ because common law marriage or common law spouses no longer exists in UK law and hasn’t done since 1753! Cohabiting couples do not possess the same legal rights and obligations as married couples or those in a civil partnership.

A few key facts to bear in mind are:

  • A cohabiting couple can separate informally without the intervention of a court.
  • Cohabiting couples have no financial responsibility to one another if they separate.
  • Fathers do not automatically have parental responsibility for their children unless they are married to the mother. Unmarried fathers can get parental responsibility for their children by jointly registering the birth.
  • Cohabiting couples have no automatic right of inheritance if their partner dies without a Will, therefore we suggest you write a will and update it regularly.
  • You don’t need to be married to open a joint account.
  • Cohabiting couples can’t claim ownership of each other’s property in the event of a breakup. If one partner owns a house, the other partner may have a claim to have an interest in it on the basis that a “trust” has arisen, even if the relationship later breaks down. A trust may arise where a partner makes certain financial contributions. So, we suggest you agree how you will split payments and make a note of any purchases or payments you make.
  • You are liable for any debts which are in your own name only, but not for any debts which are just in your partner’s name. You may be responsible for the whole of debts in joint names and for other debts for which you have ‘joint and several’ legal responsibility. For example, in England and Wales, if you owe council tax, you and your partner will both be responsible for the debt, regardless of whether one of you contributes or not.

Cohabitation agreements are legally binding between couples. They can help to clarify how you intend to manage your finances whilst you live together and provide certainty in property division upon the breakdown of the relationship. A written agreement can avoid a great deal of unpleasantness and cost by avoiding arguments in the first place.

A few questions to consider:

  1. Is the property held in one person’s name or in joint names (as beneficial joint tenants or tenants in common in equal or unequal shares)?
  2. What contribution has each party made to the purchase price?
  3. What are the arrangements for the repayment of the mortgage?
  4. What are the arrangements for the outgoings and maintenance of the property?
  5. Are any third parties making any financial contribution to the property and on what basis?
  6. How will any repairs, renovation and improvement costs be dealt with?
  7. What are the intended arrangements for the disposal of the property in the event of the relationship breakdown?
  8. What is intended to happen if the relationship breaks down and one partner moves out before the property is sold? Who pays the mortgage and other bills pending sale?
  9. What is intended to happen to the property if one partner dies?
  10. What if one partner wants to ‘buy out’ the other’s share? How will the property be valued and how will the valuer be chosen? How long should the remaining partner be given to raise the necessary funds?
  11. What is intended to happen if there are children and one partner stops working to look after them and can no longer contribute financially?

For more information or to book an appointment please call 0800 160 10 10.

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