The number of unmarried couples who are living together has dramatically increased in recent years and over one- third of births are now outside marriage. Family lawyers have traditionally been consulted by such couples when their relationship breaks down but, increasingly nowadays, they are being instructed by couples who want advice on setting up home together.
There is a common misconception that, after a given period, a couple living together, but not married, acquire the same property, financial and inheritance rights as married couples. This is not true: the myth of the common law wife is one of the most enduring. Contrary to popular belief cohabitants do not, after a specified period, acquire the status of common law wife giving them rights to property, a share of assets and the right to be maintained. In fact there has been no such thing as a common law wife for over 240 years.
Cohabitation agreements
However, you can put a ‘cohabitation agreement’ in place to ensure that your wishes and needs are met if either of you die or if the relationship ends. Strongly recommended, this is an agreement drawn up between a couple when they enter into a relationship. It provides a clear record of intent. A cohabitation agreement can cover a range of issues including who owns property and what the effect of a later contribution will be, for instance, what happens if one person can't pay their share of the mortgage. It can cover who will pay for repairs and improvements and what the effect will be on property entitlement. Critically it can cover what happens to the house on separation; can one party buy out the other and, if so, an agreed method of valuation.
A cohabitation agreement can also cover contents, particularly those purchased during the relationship and determine who they should belong to. It can cover responsibility for credit cards and loans and joint accounts. It can also cover how a dispute should be settled and set out the circumstances that give rise to the termination of the contract such as a subsequent marriage.
Buying a house
A property may be owned in the sole name of one partner or may be owned jointly. If one half of a cohabiting couple has sole legal ownership of the property, it is presumed that he or she owns all the interest. For the other half to have any claim he or she would have to prove that part of the property is held for their benefit. This would need an application to the Court which would be dealt with on strict legal principles.
Therfore as a cohabiting partner of a sole occupier you have no rights to remain in the home if you are asked to leave by the owner, so both parties should take steps to protect their position when buying a property together. We can advise you on this.
Holding a property under joint names does not necessarily mean that the property has to be held with each party being entitled to half. A couple can choose how it is held, 90/10, 60/40 or whatever is required. Alternatively a couple can hold the property equally ensuring that if one dies, the other person automatically becomes entitled to the whole property. This is a simple, practical way of preventing any further dispute.
Financial Arrangements
Financial matters can be addressed in a cohabitation agreement. On a day to day level, if you are cohabiting and you and your partner have separate bank accounts, neither of you can have access to money held in the other partner’s account. If one partner dies, any balance in the account will be the property of the estate and cannot be used until the estate is settled.
If you have a joint account, both partners will have access to the money in the account. If the account is in joint names, on the death of one partner, the whole account immediately becomes the property of the other.
Responsibility for children
There is a belief that having children increases the range of options for cohabitees. This is not strictly true. The Children Act governs the relationship between parents and their children and deals with issues over where a child should live and who will be responsible for the main decisions in their life.
An unmarried mother has sole parental responsibility for a child unless she registers the birth of her child together with the child’s father, makes a formal agreement with the father of the child or there is a court order in favour of the father. An unmarried father does not automatically acquire parental responsibility and it is parental responsibility that gives the father the right to an equal say in all the issues affecting the upbringing of his child.
However, unmarried fathers are still liable for financial orders under Schedule 1 of the Children Act for the maintenance of their children. However there are strict limits on how these applications are viewed by the court. The court's powers are restricted because the Child Support Act takes precedence. The CSA would assess maintenance excluding the court from carrying out a maintenance assessment. A lump sum order can be ordered but only for a particular item of capital expenditure. It cannot be granted on a general ongoing basis. The court can order the transfer of property to the mother for the child's benefit during their dependency. When the child is no longer dependent the property reverts to the father who purchased the property. The mother herself has no claim to maintenance.
Making a Will
Another popular myth is that by living with someone you have a claim on their estate if they die. You don't. If one party dies without leaving a will then the surviving partner will not automatically inherit anything unless the property is jointly held. Wills are essential for cohabitants and can cover property, savings, guardianship for children as well as the right to reside in a house. The lack of a will could lead to further litigation under the Inheritance (Provision for Family and Dependants) Act 1975 that asks the court to provide for a dependant but such claims are hard to pursue and are the last thing on the mind of a surviving partner following the death of a loved one.
