Contrary to popular belief, cohabiting partners do not have the same rights as partners who are legally married or who are in a civil partnership. The ‘common law’ marriage agreement is a myth, and because unmarried couples are now very common, it is important that the rights of cohabiting partners are fully understood.
What are cohabiting partners?
Cohabiting partners are classed as partners who are living together but are not married or in a civil partnership. Partners who are married or in a civil partnership are legally tied to each other in terms of property and assets, but that is not the case with cohabiting partners. Therefore, the division of property and assets, as well as arrangements for children, can become complicated in the event of cohabiting partners suffering a relationship breakdown, or in the event of one of the partners dying.
Unmarried partners have no rights to assets in the name of the other partner in the event of a relationship breakdown or death, and this is regardless of how long the couple have been together, and regardless of whether they have children together. If a cohabiting partner lives in a property which is in the other partner’s name, i.e. they are not the legal owner, they have no rights to any share of the equity in that property in the event that it is sold. If the cohabiting partners are joint owners of a property, but there is no formal record of their respective financial contributions, when the property is sold the proceeds from the property’s value will be split evenly between the two partners. This could be considered unfair if one partner has contributed significantly more money than the other.
How do cohabiting partners protect their rights?
Although they don’t have the same automatic rights as married couples, there are a number of ways cohabiting partners can protect themselves in the event of a relationship breakdown or one of the partners dying. Each of these protections work in a slightly different way.
- Declaration of trust – This is a way of protecting the financial interests of both cohabiting partners when they buy a house together. A declaration of trust formally recognises the financial contributions of each partner towards the purchase and states an agreement as to how the property will be divided in the event that it is sold. The intention is to provide clarity and fairness.
- Cohabitation Agreement – Similar to a pre-nuptial agreement for married couples, a cohabitation agreement goes one step further than a declaration of trust by covering a wider range of assets and also extending to covering child arrangements. A cohabitation agreement is recognised by courts as a fair record of each partner’s intentions and protects their rights in the event of a relationship breakdown or the death of one partner. Assets covered can be property, as well as pensions, life insurance and savings. Typically, a cohabiting couple will draft this agreement when buying a house, or having children, and can update it as and when significant changes occur, such as subsequent children being born.
- Writing a will – While it is always advisable to have a will drawn up, that is particularly the case for cohabiting couples. If you are unmarried and your partner dies intestate, i.e. without a will, then the surviving partner has no automatic right to any of the assets of the deceased. Unlike with married couples, these do not automatically pass to you. If both cohabiting partners write a will, this can ensure that property and assets are shared and distributed as intended, and that the surviving partner is protected.
- Parental responsibility – A father has no automatic parental responsibility for a child, unless they are married to the mother. Therefore, the father would have no say in how the child is brought up, where they live and in big decisions relating to their education. An unmarried father can gain this parental responsibility by jointly registering the birth alongside the mother, and therefore putting the father’s name on the child’s birth certificate. Establishing this parental responsibility provides extra security for the child in the event of one partner dying, as well as protecting the father’s parental rights in the event that it is the mother who dies, or the cohabiting couple split up.
- Pension – A cohabiting partner has no rights to the state pension of a partner who dies, unlike with married couples where this right is passed on automatically. However, it is possible to pass on rights to a private pension, if the other partner nominates you as a dependent or beneficiary while they are alive.
Contact Ison Harrison for expert advice for cohabiting partners
If you are a cohabiting partner from a relationship that has broken down, or your partner has recently passed away, we can provide you with expert, sympathetic advice on your rights to assets, property and children, and how you need to proceed. And if you are a cohabiting couple looking to protect each other’s rights, we can advise you on what you can put in place to provide this security, so contact our family law team at Ison Harrison today.
