According to a recent survey, over 57% of people the UK believe that ‘common law marriage’ exists. This is however a common misconception; making the prior statistic even more worrying given that more and more couples are cohabiting. In 2012 5.9 million people were cohabiting in the UK, double the figure from 1996.
Cohabitation vs. marriage – what are your rights?
Cohabiting couples do not have the same rights as married couples or couples in civil partnerships upon separation. In divorce proceedings married couples are potentially able to make a claim against the other in relation to all assets owned by them, which includes pensions and properties owned. A spouse can also make a claim for maintenance, whereas an unmarried person has no such right unless there are children involved.
It is important to know that an unmarried person will only have a claim against a property owned by their partner if there is:
1. A written agreement such as a Declaration of Trust or Cohabitation Agreement; or if
2. A contribution has been made
The latter can be very difficult and complicated to prove.
If an unmarried couple have children and the primary carer has the property transferred to them by Order of the Court then it is usually the case that the property will return to the other person when the children reach adulthood.
When an unmarried couple buy a house together it is most likely that the couple will own the property as Joint Tenants. This means that there are no distinct shares. If one partner has for instance made a large contribution toward the purchase price of the property and wants credit for that upon separation then when purchasing the property a Deed of Trust should be made confirming that the property is held by the couple as Tenants-in-Common, for instance in 70% and 30% shares.
On death, without a will, unmarried couples do not inherit from the other under Intestacy Rules. Even tenants-in-common will not inherit their partner’s share of the property.
There are inheritance tax exemptions available to married couples where there are none for unmarried couples.
Parental Responsibility is the right that a parent has to be informed of any decisions made in relation to a child’s welfare, education, religion, health and upbringing. On the 1st of December 2003 the law changed and gave fathers automatic parental responsibility when registered on a child’s birth certificate. Unmarried fathers of children born before the change in the law will not have parental responsibility automatically whereas married fathers will.
Despite the statistics above and campaigns for a change to the law, the government have no plans for reform. It is therefore increasingly important for cohabitees to know their legal rights.
What can I do?
- Set out your intentions.
- Entering into a Cohabitation Agreement is a sensible way to set out responsibility for who pays the bills and who will own what possessions in the home.
- When buying a house together it is sensible to enter into a Deed of Trust setting out how the property is to be owned.
- Make a will.
- In terms of parental responsibility, for those unmarried fathers of children born before the change in the law, enter into a Parental Responsibility Agreement with you partner.
If you are unsure then seeking legal advice now may save time, money and heartache in the long term. Our team of family law solicitors are able to advise you in more detail on cohabitation rights in relation to your individual circumstances. Please do not hesitate to get in contact with our award winning team today.
By Angharad Drew, Family Solicitor, Accrington