Cohabitation: are you protected?

07/07/2010

There are already millions of people who cohabit in England and Wales and the numbers are likely to rise. There is a popular misconception that people who live together as man and wife without getting married eventually acquire some special legal rights, similar to those enjoyed by people who marry.

This popular myth is only strengthened by newspapers which regularly use the terms common-law wife or common-law husband as though they meant something more than cohabitees. However these terms are, for legal purposes, meaningless.

During the course of a relationship an unmarried couple are able to buy property together, have children together and make wills in each other’s favour and are unlikely to worry very much about the law’s attitude towards them. However, it is essential that people recognise that they have little financial protection when the relationship ends.

A Law Commission Report has suggested that legislation be introduced to provide cohabiting couples with greater financial security on separation. Those recommendations have not yet been accepted and even if they were, it is likely to take a number of years for the rules to change. Therefore at present, cohabiting couples do not have any legal obligation towards each other simply from their shared life together.

When an unmarried couple’s relationship ends, either because the couple wants to separate or one of them dies, the law generally treats the parties as two unrelated individuals no matter how long they have lived together. In simple terms, this means that each party takes out of the relationship the property they brought into the relationship. Money or assets acquired during the relationship belong to the person directly responsible for acquiring the money or assets. Assets will only be shared if there is a clear agreement to do so, although this might sound simple, this can mean that people are left in a very vulnerable financial position.

Many cohabiting couples presume that they and their partner have an unspoken understanding as to what should happen when the relationship is over. Unfortunately, when a relationship breaks down what may have seemed obvious and fair while the relationship lasted may be called into question when the relationship ends. You may therefore wish to ensure that what has been agreed between you is clearly confirmed between you which will hopefully avoid expensive and time-consuming legal proceedings at the end of the relationship or on the death of your partner.

The rules are different if there are children, because although a couple are still treated as unrelated individuals with no responsibility towards each other, the law does recognise the responsibility of both parents to the children. In certain circumstances, one parent may be able to claim maintenance, a lump sum or property rights against the other but only on behalf of the child, not in their own right. The parent who is not living with the child may be required to pay child support via the Child Support Agency.

There is nothing to stop a couple from entering into a legally binding agreement and sharing their assets in a particular way and every cohabiting couple should think about whether they need such an agreement, especially if they have children.

Cohabiting partners are also at a disadvantage when it comes to inheriting the property of a deceased partner. There is no presumption that a person who dies without making a will wishes to leave their property to the person they were living with. Therefore, cohabiting partners who wish to leave each other their property in the event of their death should make a will. Unmarried couples with children should give particular thought to making wills and making provision regarding guardianship for the children in the event of the death of one or both parent.

As indicated, there are steps a cohabitee can take to make themselves less vulnerable in the event of a relationship breakdown or their partner’s death.

To discuss matters further please contact our Family team to make an initial appointment.

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