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Cohabitees

Key Points

  • What does cohabiting mean?
  • Cohabitees are not protected by the same laws as married couples – there is no legal validity to the concept of the ‘common law’ spouse
  • Dividing the assets of a cohabiting couple can be very complex
  • A cohabitation agreement can help set out your intentions regarding assets and children if you later split up
  • Cohabitees can’t make a claim on their former partner’s pension
  • How you own the house together will affect how it is divided
  • Our family team is Legal 500 recommended

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1. What does cohabiting mean?

Cohabitation is defined as two people, who are unmarried or not in a civil partnership living together in a long-term relationship but without being legally married.

What does cohabiting mean in law?

Under current law in England and Wales, there is currently no legal definition of a cohabitee, as that person is still considered an individual. This can have a huge impact on many cohabitees who separate and find that they do not have the same rights as married couples, or those in a civil partnership, or that cohabiting is not a marital status.

2. Do cohabiting couples have rights?

If you are an unmarried, cohabiting couple, or are not civil partners, you do not automatically gain the same rights as a married couple/civil partners. This is regardless of the length of your relationship or whether you have children. You may be completely surprised and dismayed to find out about what would happen to your assets if you separate from your partner: if you think you’re entitled to half of everything, and you’re not.

3. What is a common law partner?

A ‘common law partner’ is a commonly used term to describe someone cohabiting in a long-term relationship.

However, despite common misconceptions, cohabiting couples have no legal status and a ‘common law marriage’ does not exist.

Many cohabitees are under the assumption they are in a ‘common law marriage’ that is legally recognised, but this isn’t true. These couples often find that if their relationship breaks down or a partner dies, they are not entitled to any of the same legal protection they would have had if they were married or civil partners.

4. What rights do cohabiting couples have when they separate?

If you are cohabiting and your relationship ends or one of you dies, you will find there are very different laws in relation to property, pensions and inheritance for married couples/civil partners and those who are not.

Do cohabiting couples have equal property rights?

Property, including the family home, is likely to be the biggest asset you and your partner have built up whilst living together. As a cohabitee, unless in joint names, you have no guaranteed rights to ownership of each other’s property if you decide to separate or upon the death of one partner.

If a married couple/civil partners divorce and have not agreed on a financial split, the court can impose a ‘fair and reasonable’ split of the value of the family home. This can include deciding what percentage each person owns, or transferring ownership completely to one person. It doesn’t matter if both partners have not contributed to the mortgage; for example, where one was the breadwinner and one stayed at home to look after the house and/or children.

In contrast, if you are not married or in a civil partnership, the division of property can be extremely complex. If you relationship breaks down and you are unable to agree on the share you should both have, the case can be taken to court to determine each of your interests in your property.

For example, if your partner owns your home in his or her sole name, you may not be entitled to anything unless you can prove that you contributed directly towards any costs, such as providing the deposit on purchase, paying mortgage instalments and/or funding significant home improvements.

General upkeep such as painting is usually insufficient in this case. If you have made a relevant contribution, you may have to ask the court to declare that you are entitled under the law of trusts to a share of the property based on what was jointly intended, irrespective of the actual property ownership.

If the property is jointly owned, the way in which you bought it will affect the way it is split. If you own the property as joint tenants, either of you can apply to the court for it to be sold and the money shared equally. If you bought it as tenants in common, it’s likely that you’ll get a share of the property that reflects the ownership which may be equal or unequal shares.

Inheritance rights; what are the rights of cohabitants on death?

The legal rights of cohabitees upon death differ to those of married couples or those who are in a civil partnership. If your partner dies without leaving a will, the surviving partner will not automatically inherit any of the other’s estate.

However, in some cases, the surviving partner could make a claim at court against the estate of the deceased partner, if no provision has been made for the surviving partner either by will or by operation of the intestacy rule. But, a cohabitant is not treated in the same way as a spouse/civil partner and will only be able to seek reasonable provision for their own maintenance.

What are the pension rights for cohabiting couples?

In contrast to married couples and civil partners, cohabiting couples do not have automatic pension rights. Cohabitation does not mean you can claim against your partner’s pensions or other assets if you split up. Pensions can form a substantial part of your assets and married couples have various options available to them. For example, a husband, wife or civil partner may keep their entire pension by allowing their spouse/civil partner to keep more of the cash or property they own (known as offsetting). They can also split the pension during a divorce/dissolution of civil partnership and transfer an amount to a pension in the spouse’s/civil partner’s name, or they can arrange for a portion of the pension to be given to the spouse/civil partner upon retirement.

Maintenance

Can I claim maintenance?

Unlike a married couple or civil partners, you are not entitled to claim maintenance for yourself from your former cohabitee if you separate.

However, whether you’re married/civil partners or not, if you split from the parent of your children and the children remain living with you, that parent is obliged to pay maintenance towards the upkeep of your children. You might also be able to ask the court to make housing provisions for you if you become the primary carer for your children. This might be by way of securing a house or capital for the direct benefit of your children.

5. What happens to cohabiting couples with children

If you are a cohabitee and you have children, if you decide to separate or one of you dies, legal provisions are put in place for children under the age of 18 or dependents but, as a parent, you have no legal protection. This means that one parent could find themselves with little or no financial provision.

Dividing the family home in the event of a separation comes under property law but the Children Act 1989 is relied on in cases with dependents. These laws don’t take parent needs into account and will not consider the non-financial contributions either person has made to the relationship (such as giving up work to look after the children). This means that one person may be left destitute after the separation.

If the court decides that the resident parent is allowed to stay in the family home, this will only apply until the youngest child reaches 18 years old. When the home is in the name of the parent who is not the primary carer, the property will revert back to them and maintenance payments may cease, which means the resident parent could be left with nothing, particularly if they have given up their career to care for the children.

To decide on financial provisions for children, a number of factors are taken into account:

  • Financial positions of each parent
  • The needs and responsibilities of each parent, including other children
  • Financial needs of the children
  • Disabilities of any children
  • Intentions of each parent in regards to the children’s education
  • The remaining parent with sole care of the children can ask the court to order the other parent to:

  • provide housing for the children to live in
  • pay school fees or educational expenses
  • pay expenses associated with a child’s disability
  • provide funding to pay for items the children need
  • 6. Can cohabitation affect child custody?

    If you are married or in a civil partnership when your children are born, both parents automatically have parental responsibility. This means that in the event of a divorce or dissolution, you will both continue to make all major decisions about your children.

    When couples are not married when their children are born, only the birth mother gains parental responsibility. Unmarried fathers do not automatically have parental responsibility if the child was born before 1 December 2003 but, if the birth happened after that date and they are named on the birth certificate, they will have parental rights. The biological father can acquire parental responsibility by later marrying the birth mother.

    7. What is the main difference between cohabitation and marriage/civil partnerships?

    Being married to your partner or in a civil partnership gives you a number of important legal rights over things like property and money that cohabitation alone does not offer.

    Topic Marriage Cohabitation
    Divorce/Dissolution A marriage or civil partnership can only be ended through a formal, legal divorce, annulment or dissolution which can be costly and complicated. Cohabitation can be ended simply and informally through the agreement of both parties.
    Property During a divorce or dissolution of civil partnership, property is divided between the couple based on an agreement made between them or by the court. When a cohabitation relationship ends, property is divided upon agreement of both partners, or a court application. There is less discretion for the court.
    Maintenance If one spouse/civil partner earns a higher wage, they may be obligated to support their spouse/civil partner financially after a divorce or separation. Cohabiting couples have no obligations in terms of financial support when they split up unless a cohabitation agreement or another contract says otherwise. Find out more about your maintenance rights as a cohabitee.
    Illness For a married couple/civil partners, if one partner becomes ill or incapacitated, the other spouse/civil partner can then make decisions on their behalf on issues surrounding health care and finances. Despite the length of your relationship, as a cohabiting couple, the decisions around an ill or incapacitated partner may fall to immediate family
    Inheritance rights If your spouse or civil partner dies intestate (without a will) the remaining spouse usually inherits part of their estate unless someone else makes a claim. As a cohabitee, if your partner dies without leaving a will, you will not automatically inherit any of their money or property. Find out more about your inheritance rights when cohabiting.
    Parental rights When children are born within a marriage or civil partnership, both parents are granted parental responsibility so, if you separate, you both still have the ability to make all major decisions concerning dependent children. For cohabitees, only the birth mother gains automatic parental rights. For the father this is dependant on when the child was born and if he is named on the birth certificate. Find out more about parental rights.
    Bank accounts By law, the money in a married couple’s/civil partners’ joint account is regarded as jointly owned and, if one partner dies, the other is automatically entitled to the money in the account. When you’re cohabiting and sharing a joint account, if one partner dies, the other may still be able to draw from the account but a portion of the remaining balance remains in the estate of the deceased person.

    8. How can I protect myself as a cohabitee?

    We can help you to protect yourself as a cohabitee by drafting up a legally binding cohabitation agreement which can set out your intentions in regards to property, cash and belongings if you split up, as well as the arrangements for your children. You can find out more about cohabitation agreements and what they should include here.

    Cohabitation agreements are the best way to ensure your finances and share in any assets are legally protected, allowing you to name each other as beneficiary under your pensions and deciding what will happen to any of your assets should you split or if one of you dies unexpectedly. This helps to agree financial splits in a fair and considered way to avoid costly court proceedings in the future.

    If you and your partner are separating and cannot agree between you on how your property or finances should be divided, a form of dispute resolution can be a better way to help you come to an arrangement.

    9. What does subsequent cohabitation mean for spousal maintenance?

    If you have recently been through a divorce or dissolution of a civil partnership or you are receiving maintenance payments from your ex-partner and you decide to move in with a new partner, you need to consider any financial arrangements that are in place. Any maintenance payments you receive from your ex-partner could end if you decide to cohabit with someone else.

    What is classed as cohabiting?

    The law around what constitutes cohabitation is still very unclear, but judges usually consider the following in cases where it is unclear if a couple is cohabiting or not:

    • Living in the same household
    • Sharing daily tasks and duties
    • Stability of the relationship
    • Financial affairs indicate a relationship (for example, a joint bank account)
    • Sufficient evidence to suggest cohabitation in the opinion of a reasonable person with normal perceptions
    • Contact our family lawyers now to find out how to protect yourself as a cohabitee, gain legal advice or to make an appointment for a confidential meeting.

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You can read more about the merger here. Graysons will be pleased to help with your enquiry. Please visit our web pages or contact us directly on 0114 358 9009

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