Your rights as a cohabiting couple and how they are set to increase

By Rebecca Massam Fri 10 May, 2019

Applying for probate when a loved one dies

Whilst moving in together may provide you with everything you could want from a relationship, what you may not know is that the legal status and rights of unmarried couples differs greatly to that of married couples.

According to the latest British Social Attitudes Survey nearly half the population of England and Wales mistakenly believe that if you live with someone you are in a ‘common law marriage’.

Very simply: There is no such thing as common law marriage.

So, if you are not married and you and your partner separate, you may not have as much legal protection as you thought you had.

Rebecca Massam divorce and family law expert at Warners Solicitors in Kent explains the existing limitations to a cohabitee’s legal rights and outlines government proposals to increase their legal rights in future.

The limits to your rights as a cohabitee

Unmarried couples do not automatically share the family assets in the same way that married couples do. This will depend very much on whose name property is held, and whether there is any evidence that it was intended to be shared.

Also, unless specific provision is made by Will, you will not always automatically inherit the family home upon your partner’s death, and vice versa.

It doesn’t matter whether you have lived together for three years or 30 years, you have no recognised legal status giving you automatic rights to your partner’s assets on separation or death.

Instead, as a cohabitee you only have the right to money and assets that you strictly hold in your name. If you are living in a house owned solely by your partner then the chances are you have no legal right to it if your relationship breaks down.

Disputes can arise regarding legal ownership and one partner may claim a right to a financial interest in the property held by the other. This may be where, for instance, they contributed a lump sum towards the mortgage or paid for extensive renovations. These disputes can often be agreed in mediation, or between the parties directly, but can sometimes also lead to expensive, stressful and time consuming litigation.

Proposals for change

The government recognises the plight of cohabiting couples, particularly where they have children, and has made proposals under the Cohabitation Rights Bill. The aim is to give legal rights to cohabiting couples that are similar, though less extensive, than those enjoyed in marriage and civil partnerships.

If the proposals become law, cohabitees who have lived together for more than three years, or have children together will have a limited right to apply for a financial settlement order up to two years after separation.

The court would have to take into account various factors including each person’s income and earning capacity, any property and their future financial needs and obligations as they do for married couples. The court’s first consideration would be the welfare of any children under 18 while they are a minor.

There are also proposals to make provision in relation to the property of one cohabitee who dies before their partner; and to enable one party to take out life insurance for the benefit of the other party or for a child.

While the proposed changes will undoubtedly help cohabitees, critics say the proposals do not go far enough. However, they will at least give some peace of mind to those who live with their partner but do not wish to marry or enter into a civil partnership.

What can cohabitees do to protect themselves?

Whether you want to ensure that you are able to share the family home in circumstances where you are not married, or want to limit the extent to which any new or changes to the current law may enforce sharing, then you may wish to consider entering into a cohabitation agreement, setting out how property will be dealt with should you and your partner separate. Either way, it is advisable to obtain legal advice if you are planning to move in with your partner.

You should also consider making a will and exploring whether you can nominate your partner in your pension scheme so that you have control over who inherits your estate upon death.

Expert legal advice is always advisable, so that your will takes into account any dependents you have. Marriage and Civil Partnership can have an effect on the validity of a Will, so it is always a good idea to update your Will regularly, and take expert advice.

If you are concerned about your rights as a cohabitee or involved in any family law dispute, please contact Rebecca Massam in the divorce and family law team on 01732 747900 email r.massam@warners.law. Warners Solicitors has offices in Sevenoaks and Tonbridge, Kent.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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