Bristol Family Solicitor
Across England and Wales more and more couples are choosing to live together without getting married or entering into a civil partnership. This cohabitation may be leading up to some kind of formal union, or the couple may just prefer the simplicity of cohabiting. Either way, what all partners in this situation must realise is that they don’t have the same protection under the law as married couples or those in a civil partnership.
A lot of cohabiting couples believe that there’s such a thing as a ‘common law marriage’, which applies to all partners living together. However, they might be surprised to discover that this is actually not the case in England and Wales. Most couples who are simply cohabiting are living together without much of the protection offered to married couples and civil partners, which can cause problems when the relationship ends, or one of the partners dies.
Cohabitation & Property
Many couples live together without getting married or becoming civil partners, and as long as the relationship is okay, this can work out fine. However, if the relationship ends for whatever reason, one partner could find that they don’t have any claim on the property, regardless of how long they might have lived there.
Many cohabiting couples don’t actually realise the precarious legal position they could be in until it is too late. While not something a lot of unmarried couples contemplate when they are thinking of setting up home, the appropriate course of action may be to take care of the necessary legal arrangements in case the relationship fails, which can be achieved by purchasing a property in one of two ways:
- Joint tenants – Cohabiting couples can purchase a property as joint tenants, which means that they both own the property equally. If the relationship ends, both have an equal claim to the property, and if one dies, their share would automatically pass to the surviving partner.
- Tenants in Common – A couple might prefer to be tenants in common. This would mean that each partner would own a specific share of the property. If the relationship does end, each partner retains their share of the property. In the event that one of the partners dies the surviving partner wouldn’t automatically inherit their share, but instead it would become part of the estate of the deceased partner.
It’s a relatively easy task to change a joint tenancy to a tenancy in common, which could be useful if the relationship ends and you want to protect your investment, or one partner starts to invest proportionally more into the property.
Although this deals with property purchases, couples who are sharing a rented property also need to be aware of the legal implications of their tenancy agreement. If there is only one name on that agreement then they will be the only person who has a legal right to remain in the property, which could cause problems if something happens to them or the relationship ends.
Finances & Cohabitation
Through marriage and civil partnerships couples receive a certain level of legal protection when it comes to their finances if the relationship ends. They can usually expect to receive their fair share of any assets, and may even be paid maintenance on an ongoing basis. This is not the case with cohabiting couples.
Partners who are simply living together have no financial responsibility to each other after the relationship ends, and neither would they have any claim to each other’s assets if something was to happen to one of them.
Cohabitation & Parental Rights
When a legally married couple have a child they are both recognised as the parents of that child and enjoy all the responsibility and rights that come with that. With cohabiting partners, the father will have no legal rights to the child unless he is present when the birth is registered, or the relevant documents are provided that confirm he is the father.
There are many fathers who don’t understand the implications of this until the relationship breaks down and they suddenly discover they have no parental rights for their children, which in extreme cases may mean they can’t even see them. Quite often in these situations, the father will need the court to grant a parental responsibility order and award him his parental rights.
More and more couples are choosing to draw up a cohabitation agreement to help avoid potential issues with property and finances. Some may even decide to do this after they have separated, although in these cases the agreement resembles a traditional separation agreement.
As each relationship is unique each cohabitation agreement tends to be different, but they all tend to cover a variety of common issues including:
- the sharing of property and assets
- child custody and visitation
- how any accrued debts will be distributed
Any cohabitation agreement can be used as a strict arrangement for the relationship, or it might simply be a guideline for a separation, however, the court may be required to determine if the agreement is legally binding or not.
A recent review of the laws relating to the break up of partners who are neither married or in a civil partnership, means it’s likely that the legislation could be changed in the near future.
In the meantime, if you are cohabiting and concerned about your situation, get in touch with a Bristol Family Solicitor from our firm, who will provide you with the help and advice you need.