According to data released by the Office for National Statistics using information contained in the 2021 census, cohabiting families are the fastest growing family group in the UK. Despite this, legislation protecting cohabiting couples has not kept up to date with changes in society.
Diane Matthews, a legal executive in WHN’s family law team, outlines the importance in understanding your rights if you are in a cohabitation relationship, and how to protect your position should the relationship breakdown.
The popular perception that after living together for some time and becoming a ‘common-law partner’ or in a ‘common-law marriage’ will provide you with legal protection are a myth. Many partners in cohabitation relationships may find themselves not properly protected and may experience serious difficulties should their relationship break down.
This may include issues relating to property and finances as well as the care of children within the cohabitation relationship.
Protecting your rights with a cohabitation agreement
A cohabitation agreement is very similar to a pre-nuptial agreement. As a document, it sets out how assets should be divided should the relationship break down. It can also set out, in detail, the care arrangements for any children.
Cohabitation agreements may be particularly useful where parties are entering into a relationship, later in life when both have amassed their own assets that whey wish to protect and pass on to their own children.
The agreement can also regulate various areas of the relationship while the couple is living together, such as payment of utilities and mortgage relating to a shared home.
A cohabitation agreement is not, however, a legally binding document. As a result, there is no reassurance in respect of the reliability of the terms set out should the agreement be tested in a court.
Any cohabitation agreement must be very carefully prepared. Such agreements are basically contracts and therefore must meet certain criteria. It is always sensible to seek advice from a specialist family lawyer to create such an agreement. Such agreements may be entered into by both opposite sex and same sex couples.
See also further details in our blog post: How to protect your assets if you’re cohabiting with a partner
Your property rights when a cohabitation relationship breaks down
The basic principles governing property rights in the case of cohabiting couples is governed by trust and property law, rather than family law as is the case for married couples or couples that have entered a civil partnership.
The ownership of such property is usually established by examining the legal title, although various arguments can be put forward by the partner not appearing on the title to claim rights over the property.
It is difficult to establish property rights and the burden of proof is on the claimant (the person making the claim).
Arguments to try and establish an interest in the property (known as beneficial ownership) include the claimant’s contributions towards mortgage payments or financial contribution towards the initial acquisition of the property.
In addition, funding improvements to the property will be regarded as relevant in establishing a beneficial interest. However, proof of the contributions in question must be demonstrated to establish a claim.
If a cohabitee acts to their detriment by placing reliance on a verbal agreement between the parties that they will have a claim on any property, then this is an argument that the courts will consider. However, it must be kept in mind that any proceedings will be costly and create significant stress.
Married couples or those in a civil partnership, on the other hand, have access to a much simpler process for dealing with any financial consequences of separation.
See also further details in our blog post: I’m unmarried and separating from my partner: Am I entitled to half of our house?
Dealing with children in the breakdown of a cohabitation relationship
A parent who is the primary carer of children within a cohabitation relationship is in a very different position to that of married parents should the relationship breakdown. The former cohabitee has no right to claim property and maintenance from their former partner. Any claim is limited to child maintenance or possibly a claim to deal with the child’s housing needs (note: the parent who is the primary carer would be housed with the child).
There is, of course, an obligation on parents (whether married or cohabiting) to maintain the care for their children. It is important to note that in a cohabitation relationship, any property provided to a parent caring for a child, will revert to the donor parent when the child completes full time education. In this situation, there may be significant issues for the primary carer parent unless they have made alternative provisions for themselves.
With regards to parental responsibility, if a parent’s name is not on the child’s birth certificate, they do not automatically acquire parental responsibility.
This means they will not have the right to be involved in major decisions regarding the child(ren) nor in their upbringing. In such cases, parental responsibility may be acquired by agreement or through a court order. Fathers married to their child(ren)’s mother automatically acquire parental responsibility.
Determining the next of kin
Where a couple is cohabiting, often to their surprise they are not automatically considered as each other’s next of kin. Therefore, in the case of one partner’s death, their partner may not automatically inherit assets. It is therefore very sensible to take specialist advice with a view to making a will.
Diane specialises in divorce and separation, with experience in resolving financial and property disputes for unmarried families, pre-nuptial agreements and cohabitation agreements. If you are in a cohabitation relationship and wish to seek legal advice, please contact Diane on 01254 272640 or by email: diane.matthews@whnsolicitors.co.uk.
