Insights

Cohabiting Couples & the Law – Protect Your Rights!

Posted by: William Claydon | 19th July 2019

The number of cohabiting couples continues to rise to over 6 million in 2018. This coincides with a decline in marriage rates, which have fallen since their peak in the early 1970s. With this in mind, what does it mean for couples that are choosing to forgo tying the knot?

It is often overlooked that unmarried couples do not enjoy the same rights as married couples. It is therefore important that married couples are aware of this difference so that their rights are protected. Our solicitor in Family Law, Sarah Perkins, discusses the rights of married and unmarried couples and dispels some myths surrounding ‘common law marriage’.

What does ‘common law marriage’ mean when people refer to cohabiting couples? Is it a myth?

Common law marriage in the UK is a myth.  The term refers to couples who choose to live together unmarried.  Worryingly, many people in the UK believe “common law marriage” exists and that unmarried couples enjoy the same legal rights as married couples.  This is not the case.

How do the rights of married and unmarried couples differ?

The rights of married and unmarried couples differ in several ways. For example, when an unmarried partner dies without leaving a will, the surviving partner will not inherit anything.  Unless, however, the couple jointly owns property and assets. A married partner would automatically inherit all or some of the estate under the rules of intestacy.

Additionally, cohabiting partners cannot access their partner’s bank account if they die. Whereas married couples may be allowed to withdraw the balance providing the amount is small. Cohabiting partners are not legally considered to be next of kin.

Following separation, an unmarried partner who has stayed at home during the relationship to care for children cannot make any claims in their own right for property, maintenance or pension sharing. It is irrelevant if the decision to care for children was to the detriment of the person’s earning capacity and regardless of how long they lived together.

There is no legal obligation on unmarried couples to support each other financially. Whereas married partners have a legal duty to support each other.

Furthermore, if an unmarried couple lives in rented accommodation and the tenancy is in only one partner’s name, the other has no legal right to stay in and occupy the accommodation.  When married, each partner has the right to live in the matrimonial home.

What legal considerations do you think unmarried parents should be aware of?

An unmarried father does not have automatic parental responsibility for a child. Parental Responsibility is acquired by an unmarried Father when named on the Birth Certificate or an Order of the Court.

If an unmarried parent dies without leaving a will, the other parent will not inherit anything unless it is jointly owned.  If the child is the deceased parents’ next of kin, then the child will inherit all or part of the estate. The estate If the child is a minor, the estate will be held on trust. It is therefore of utmost importance that unmarried parents have up to date wills reflecting their wishes.

Tell us what a cohabitation agreement is and how it could help unmarried couples.

A Cohabitation Agreement is a written document which sets out the parties’ intentions concerning property and other assets. It provides certainty regarding property division in the event of a relationship breakdown.  Agreements can include the following information:

  • who will be responsible for payment of rent or mortgage and various household bills;
  • ownership of personal belongings and furniture;
  • ownership and shares of jointly owned property;
  • detail the living and contact arrangements for children following the breakdown of the relationship.

Provided the agreement is drafted correctly it is legally enforceable.

Are there any other measures cohabiting couples can put in place to protect themselves if they split up or one of them dies?

If properties are purchased jointly but with unequal contributions to the purchase price, unequal contributions to mortgage payments and other expenses related to the property, the property should be held as Tenants in Common and a Deed of Trust drawn up upon purchase reflecting the arrangement.

Cohabiting couples should ensure that they have up to date Wills reflecting ho should inherit their assets and belongings in the event of death.

How can we help:

Get in touch with an experienced member of our team today. Contact us via:

Telephone: 0333 231 6405

Email: family@cjch.co.uk