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Cohabiting: Your Rights on Separation

Updated on November 18, 2014
Gloriousconfusion profile image

I practised as a solicitor in London, mainly in all areas of family law and my studies gave me an interest in psychology, and human rights

Tarde de verano en Skagen by Peder Severin Kroyer - 1899
Tarde de verano en Skagen by Peder Severin Kroyer - 1899

Living Together as Cohabitees? In Love? What If Your Relationship Breaks Down?

Are you living together without being married?

If so, Do you think you have similar rights to married people?

Wrong!

You have very limited rights.

The law is due for an overhaul, because cohabitees' rights on a breakdown of the relationship are often far less than those of a married couple and far less than many people realize when they move in together and possibly start a family.

For instance, although you could claim for child maintenance, you would not be entitled to maintenance for your own benefit from your former partner even if you have been in a very long-term relationship. And, unless you have made a substantial financial contribution to purchasing a property together, you would probably lose your home on break up of the relationship.

Until my retirement I was a solicitor specializing in Divorce and Family Law. Please note that I am no longer a solicitor, and this article is merely for your guidance, and is not intended to replace appropriate legal advice.

he Parting of Abelard and Heloise by Angelica Kauffman 1775
he Parting of Abelard and Heloise by Angelica Kauffman 1775

Surge in Cohabitees' Relationship Breakdown

in England and Wales



According to family lawyers there has been a surge in the number of cohabitees seeking relationship advice in England and Wales, with cases up by about 15% in the first quarter of 2012, compared with the previous year.

This large increase has been caused partly because more people are now living together and therefore there would be more breakdowns of relationships.

Also, as the recession begins to bite hard, many people have lost their jobs, or are experiencing a fall-off in business and are finding it difficult to meet their financial commitments, falling behind in mortgage payments or rent, and losing their homes, with some people even going bankrupt. These financial pressures cause stress, bad temper, lack of transparency and disagreements, all of which are instrumental in causing breakdown of relationships.


More about Cohabitation

Did You Plan to Live Together or Was it a Spontaneous Decision?

:

Unlike Marriage, cohabitation can start

in a very casual way - the guest who came

to stay for one night and was still there, in

your bed, five years later.

Alternatively the couple may have come

to a decision to cohabit only after very

careful thought, weighing up all the

pro's and cons.

Sometimes it is a genuine trial

marriage, and other times just a

casual relationship, with someone

you like at the time, but would

have no long-term plans to marry.


After a relatively short term relationship, with no children involved, a break-up may well have emotional and social consequences, but there are not necessarily any long term legal consequences (unless either person has changed their situation substantially).

However difficulties can arise when the parties have in fact changed their position, possibly by having a child, or by entering into joint commitments such as buying or renting property and expensive items, or one person contributing substantially more financially than the other, or making promises which have not been fulfilled.

image: Cartoon by Diana Grant

Property Rights for Cohabitees

Property in your partner's sole name

If the property you live in is in your partner's sole name, you would not have an automatic right to any part of it unless you can prove that you are entitled to a share.

This might be:

- Because you have contributed to the purchase of the property. In that case, you would be entitled to a share of the value in proportion to the amount which each of you contributed;

- or you made a direct financial contribution (this could be by paying all or part of the mortgage), or an indirect contribution, possibly by paying for all the other outgoings, thereby releasing your partner's money to pay the mortgage, In those circumstances, the Court would consider your financial arrangements throughout your relationship, and would then award you a fair share.

- or your partner promised that you would have a share and you acted on that promise; in such a case the court might transfer the property into your name, give you the right to live there (sometimes just for a specified period of time) or award you a fair share of the proceeds of sale or value of the property.

Your chances of success rely on the strength of the evidence you can produce, so clearly it is important to retain evidence of payments made, or evidence of any agreement made (preferably in writing, signed and dated).

It can be very difficult, expensive and time consuming to establish that you have a right.to a share in property which is not in your name, so it is best to have a written agreement on which you can both rely in the future.

Do We Need a Cohabitation Agreement: Understanding How a Legal Contract Can Strengthen Your Life Together
Do We Need a Cohabitation Agreement: Understanding How a Legal Contract Can Strengthen Your Life Together

Just read it - you don't have to follow the advice, but just know and understand what you are letting yourself in for

 

Here's a good book: Do we Need a Cohabitation Agreement: Understanding How a Legal Contract Can Strengthen Your Life Together - By Scott N Weston

You may decide that a cohabitation agreement is not for you, but it's helpful to know the ins and outs so that you can make a decision from the standpoint of knowledge, rather than ignorance.

It's all very well, when the relationship is new, and everyone is starry-eyed, to say "we don't need a cohabitation contract - we don't want to bring commercial considerations into our relationship", but statistically, relationships between unmarried partners do tend to break up more frequently than marriages, and therefore it is probably wise to know what's involved if you don't stay together. For instance, what happens if you have bought property together, if the property is in joint names, or if the property is in only one name; and what happens about the mortgage and other outgoings until the property is sold, and does it have to be sold? I have even seen serious arguments arise out of the ownership of a pet dog.

Property Purchase in Joint Names of Cohabitees

Joint Ownership of Property by Cohabitees (Co-Ownership)

When Cohabitees Buy a Property Together Should They Hold it As Joint Tenants or Tenants in Common?

When property is jointly owned by two people, they need to decide how the property is to be held in the event of their separation or one of them dying.

There are two ways of holding a property: -

i) Holding as beneficial joint tenants which means that in the event of the death of one of you, the property passes to the other person automatically without the need for a Will. This is the old Roman law called "jus accrescendi" which means that the "right of accretion" passes to the surviving person. If you own the property as "beneficial joint tenants" you own half each and nothing that either of you have done during your relationship affects this

ii) the property may be held as tenants in common and this means that on death the property does not pass to the other person automatically - if there is a Will it passes in accordance with the Will and if there is no Will it passes to the person's next of kin. The Will might define whether the survivor has a right to continue to live at the property and how the property should devolve if there are children of one or both parties. If you own the property as "tenants in common" then the size of your share should have been specified. You should check. If they have not been specified, you will have to establish the size of your share, based on similar principles as described above. Where the documents are clear that will stand unless you can show that there has been fraud or mistake.

Sometimes conveyancers or solicitors fail to specify in the purchase documentation how you are holding the property in either of these ways. In such circumstances there is a presumption that you hold the property in equal shares unless you are able to show that this is not the case, based on the sort of principles described above. It is important that you check this on the legal documents.

When parties are not married it is usual for them to hold the property as tenants in common. They can still pass the property to each other by Will if they want to but if they do not, then they can pass their individual share to someone else - for instance if either of them has a second family or for tax planning.

You will both need to decide which of the above alternatives you would like and it is essential to ensure that your choice is registered at the Land Registry by your solicitor or conveyancer. In case of later dispute, it is always best to have a written statement of the share of the purchase price which you have each contributed to the property, including legal costs. Keep this information in a safe place permanently.

If you do not already have Wills it would be important to make a Will concerning your share of the property. Even if you have for example, a 100% mortgage, on your death this might be paid off by an insurance policy and there would then be a very substantial asset in your estate.

·

Cohabitation Agreement and/or Declaration of Trust

Property-Owning Cohabitees Should Sign an Agreement and/or Declaration of Trust

Although you may get on well now, there could be a time in the future when you wish to part company or there is a dispute about property. For this reason it is best to have a document called a Declaration of Trust or a Cohabitation Agreement, which is an agreement in writing setting out how you would deal with the property in this event.

A Declaration of Trust normally states the shares in which the property is held, and sometimes the amount which each person has contributed to the purchase of the property. It may contain other things as well.

A Cohabitation Agreement would cover such things as:-

- how the mortgage would be paid

- who pays the outgoings

- how the property will be dealt with if one person wants to leave, for instance that the person who wants to leave would have to offer their share of the property to the other person for purchase at market valuation and that there would be a time limit for the other person to raise funds, after which the property would be sold on the open market, and that both people would agree not to obstruct the sale if this happens.

Providing for these circumsances now could prevent a great deal of disagreement in the future.

If Cohabitees have Children Together

Parental Responsibility and Maintenance

The father will only automatically have parental responsibility if he registered as the father on the birth certificate after 1 December 2003. If his name is not on the birth certificate, he needs to apply for parental responsibility, either by obtaining formal agreement in writing from the mother or applying to court (See more detail about Parental Responsibility in the next headed section below).

A father is obliged by law to maintain his children, even if he doesn't see them. The law is similar for mothers.

The mother will not automatically be entitled to maintenance from her partner for herself,

The parent who is the children's main carer can make financial claims in respect of the children from the other parent (under Schedule 1 Children Act 1989). It would be very rare for a father to be required by court to pay for children by a different father, unless he has assumed full responsibility for them.

Whichever partner is the main carer might be permitted to continue to live in the property whilst the children are dependent, regardless of who owns the property. The Court can make an order for a lump sum to provide for housing or for other specific capital needs of the children, having regard to what would be in the best interests of the children. Generally capital would have to be repaid once the children are 18 or have finished their education.

The parent with whom the children live would also be able to get financial support for their children through the Child Support Agency and in some cases through the court.

Parental Responsibility, Residence and Contact

Important for Unmarried Fathers

If you have children, the father does not normally have automatic Parental Responsibility and if you both agree that he should have this, you should sign a Parental Responsibility Agreement, and register it at your local Court. However, under a very recent law, if a father attends to register the baby's birth and his name is entered on the birth certificate, he will now have automatic Parental Responsibility.

Parental Responsibility is defined as all the rights, duties, powers, responsibilities and authority which by law the parent of a child has in relation to the child and her property. These are not defined by the Court and it should be noted that this responsibility exists for the benefit of the child (i.e. for his or her care and protection) and not for the benefit of the parent. It includes the duty to look after and bring up a child and in order to do that, the power to control the child physically including discipline, protection, maintenance and the duty to show affection, care and interest to the child, a duty to ensure the child is educated and attends school regularly (and a right to have reports on the child's school progress) and to make decisions concerning religious upbringing, medical treatment and consent to a child under 18 marrying and removal out of the jurisdiction including a veto over the issue of a Passport for a child under 18.

Thus unmarried fathers without Parental Responsibility have few rights with regard to their children. If the mother is not available, the father cannot legally give his consent to an urgently needed operation, cannot object to the mother taking the children abroad, and has no say in any important matters which affect the child.

If Parental Responsibility is not agreed, the father can apply to the Magistrates Court or County Court for a Parental Responsibility Order. The Court would normally make such an order in spite of any objections by the mother, provided that it is in the interests of the child to do so. The Court starts from the basis that the child should have a good relationship with both parents and that he or she is entitled to know and be cared for by both parents. Therefore, in all but the most hopeless cases, where the father shows any commitment whatsoever to his children, the Court will make an order in his favour. Sometimes, if the mother raises strong objections, he may have to prove his commitment (which need not be just financial). Unless he is thoroughly irresponsible, violent or abusive, he would win his case, and he might win in spite of character flaws, so mothers should not waste time and money resisting unless there are serious reservations.

An unmarried father has no automatic right to have contact with his children. This would have to be by agreement with the mother, or by Court Order. He does, however, have a legal duty, enforceable by the Child Support Agency, to maintain his children.

If One Partner Dies Without Having Made a Will

It is particularly important for cohabitees to provide for each other by will

The surviving partner is not entitled to any part of their deceased partner's estate unless they own the property as "beneficial joint tenants" in which case it would pass to them.

Otherwise the deceased partner's estate will go to their next of kin. This could be a spouse if they have never divorced. If the deceased has children, the spouse would get the first £250,000, personal possessions and income from half the rest of the capital. The remaining half would go to their children who would then receive the other half when the spouse dies. If the deceased partner was divorced or had never married, all property would then go to their children.This could mean that the surviving partner would be made homeless.

If partners own a property as "beneficial tenants in common", the deceased partner's share will go to their next-of-kin, as above. The surviving partner might be forced to sell the propoerty, or buy them out.

If the surviving partner is left without resources of their own, they would need to make a claim against their partner's estate on the basis that they lived together for at least two years prior to the date of death or that they were wholly or partly dependent on them. Making a claim against an estate can be difficult, costly and time consuming and for this reason it is important that the partners make wills.

Death of one cohabitee

If the mother dies, the father does not have an automatic right to have the children residing with him. If they are not all living together at the time of the mother's death, problems could arise if there are also other family members who wish to take on the responsibility of looking after the children. The mother should therefore make a will appointing the father as testamentary guardian (if this is appropriate).

If the family cannot agree where the children should live, an application for residence and or contact would have to be made through the court, who would then have to consider what is in the best interests of the children.

If you are unmarried partners or co-owners of property, and die simultaneously, by law the younger is deemed to have survived the older partner. Therefore if you leave everything to each other, the younger partner would inherit the older partner's estate, which would then pass only to the next-of-kin or persons named in the will of the younger partner. The older partner's side would be completely disinherited, so provision must be made in a will to avoid this situation.

Providing for the circumstances now can prevent a great deal of disagreement in the future.

Unmarried partners do not have an automatic right to inherit property which is not in joint names. The Law does not recognize the concept of "Common-Law spouse" except in very limited circumstances. A Cohabitee does not gain rights of ownership merely by contributing to housekeeping or even mortgage payments. This does not mean that a Cohabitee will never have a right to property unless it is in joint names, but as the Law is so complicated, it is much better to provide for your partner specifically in your Will to avoid anxiety and hardship.

If you are unmarried partners or co-owners of property, and die simultaneously, by law the younger is deemed to have survived the older partner. Therefore if you leave everything to each other, the younger partner would inherit the older partner's estate, which would then pass only to the next-of-kin or persons named in the will of the younger partner. The older partner's side would be completely disinherited, so provision must be made in a will to avoid this situation.

Will
Will

Facts About Wills and Intestacy

Reasons For Making A Will

If you do not make a Will, your estate will devolve according to the law relating to intestacy. (Intestacy means not having a will). This can have unexpected results. it depends on your circumstances, but you do need to consider how you will protect those closest to you.

The Will disposes broadly speaking of everything which you own. A Will should be carefully worded, as it may affect not only the financial well being of your family but also its harmony. An unfair or inadequate Will can create lasting grievances.

If you are a Cohabitee, there are many reasons why you should make a Will. You will find them listed, and a lot more besides, in my web page - Why Make a Will?

Here Is some useful follow-up reading

There is plenty of literature out there on relationships - you are spoilt for choice really.

How do you feel about cohabitation?

See results

Take This Poll About Cohabitation - See how your opinion compares with that of other people

Would you say that cohabitation on its face has all the pleasures of marriage, but none of the commitment and security?

Or do you think that cohabitation is as good as marriage, but not so expensive when you want to leave?

Well, what do you think?

Discuss Your Intentions Regarding Property as Soon as Possible

Otherwise you are in a very insecure position and could lose your home if you break up or your partner dies

Here's a humorous T-Shirt I Designed on Zazzle

Wear your wounds like a warrior!


Fighting for the Inheritance - T-Shirt

by GloriousConfusion


Anything you'd like to share? Any other points you'd like to make? - Your Turn to Have Your Say - Have you experienced any problems or disputes about your righ

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    • norma-holt profile image

      norma-holt 6 years ago

      This is a great lens and I guess the law is different in each country. In Australia wives are not entitled for maintenance for themselves and couples who split up after 2 years get equal shares of the loot, except where there are extraordinary circumstances, Child maintenance is the same whether parents are married or not. Great lens and featured on Child Abuse and Murder.

    • Snakesmom profile image

      Snakesmom 5 years ago

      What an interesting read, especially for someone who is living without that marriage license. This is great info to have just in case of the un-forseen. Thanks!

    • solicitorsdubli profile image

      solicitorsdubli 5 years ago

      Another comprehensive lens Diana.

    • Joan Haines profile image

      Joan Haines 4 years ago

      I'm cohabiting now. I see marriage as a business arrangement.

    • Gloriousconfusion profile image
      Author

      Diana Grant 4 years ago from United Kingdom

      @Joan Haines: The trouble is that breach of contract seems to be endemic these days!

    • siobhanryan profile image

      siobhanryan 4 years ago

      Great lens-Poll results are interesting;;;

    • Gloriousconfusion profile image
      Author

      Diana Grant 4 years ago from United Kingdom

      @siobhanryan: Yes, I'm amazed by the percentage of people who choose cohabitation - it flies in the face, somewhat, of the current hoo-hah about gay marriage, which now sounds distinctly unfashionable!

    • David Stone1 profile image

      David Stone 3 years ago from New York City

      Times are changing, and the laws need to be reconsidered. Good point to bring up.

    • Gloriousconfusion profile image
      Author

      Diana Grant 3 years ago from United Kingdom

      @David Stone1: From a Social Science point of view, changing customs are very interesting to follow; from a lawyer's point of view, it's a nightmare to keep up with it all!

    • Erin Mellor profile image

      Erin Mellor 3 years ago from Europe

      I'm a happy co-habitee, but I do have my eyes wide open and a house and investments of my own. I am not anti-marriage, but I am just a little bit anti-wedding, that's a real money pit.

    • Gloriousconfusion profile image
      Author

      Diana Grant 3 years ago from United Kingdom

      @Erin Mellor: I suppose if you were really keen to get married but feared the wedding expenses, you could always slip off to Gretna Green, or the equivalent in other countries, and just have private wedding without all the fuss

    • profile image

      JennifersArtWorld 3 years ago

      My God, women are stupid to cohabitate with a man nowadays! Why buy the cow... Or am I just more marriage-centric?

    • Gloriousconfusion profile image
      Author

      Diana Grant 3 years ago from United Kingdom

      @JennifersArtWorld: It is possible to draw up a legally binding cohabitation agreement setting out both party's intentions in the event of separation. It would be advisable to do this through a specialist lawyer - do not attempt to do this without expert advice, as it is full of pitfalls

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