More are choosing to live together rather than marry. There are now 3.3 million cohabiting couple families in the UK. and cohabiting couple families are now the fastest growing family type (according to ONS data). Unfortunately, many don’t realise their legal rights when it comes to their relationship, property, children and inheritance. This blog sets out just four of the most important considerations for a cohabiting couple with a family.
There are no common-law rights
Far too many people still believe in the urban myth of “common law marriage” but the facts are that there is no such thing. You may have been in a relationship for over 20 years and worked hard to raise the family and run the home but if your partner is the sole owner of the family home and ends the relationship, he or she can walk away without taking any responsibility for you, even demanding that you leave the house straight away. Many people still believe that if they move in together this somehow gives them a right to make a financial claim against their partner as if they were married. This belief is wrong Whilst ‘de facto’ relationships, as they are called, are legally recognised in some countries (Australia for example), cohabiting couples in England & Wales have no legal duty to support the other financially whilst together or if they separate.
Children and housing provision
If you have children the law does offer some protection. The court has the power to intervene, usually to enable one parent of the child to secure financial assistance from the other parent to ensure the child has somewhere to live. This is separate to child maintenance, which is ordinarily managed by the Child Maintenance Service. Cases most commonly brought before the courts are for the provision of capital for housing, either by way of a lump sum or by way of a property settlement or transfer order. So, if you find yourself in a situation where you are the primary carer of your child or children, and the property in which you live is owned by your partner, you should seek legal advice with a view to exploring whether you can secure occupation of that property to continue your role in bringing up the children whilst the children are dependent.
Property ownership isn’t completely clear cut for unmarried couples
If you are living in a property owned solely by your partner but you have made significant financial contributions and there was an intention between you that you would benefit from a share of the property and you can show that you have acted to your detriment in relying on that intention, then you may have a right to claim an interest in the property under the Trust of Land and Appointment of Trustees Act 1996.
As you can tell from my parenthesis this isn’t always easy to prove, so it is important to take advice. Or better still to think about a cohabitation agreement (often called a living together agreement) when you move in together.
Inheritance may be disputed
If your partner dies and you are not a beneficiary under their Will, whilst you have no automatic right to inherit, if you can show you were financially dependent on your partner you could make a claim against their estate even if you were not a beneficiary of the Will.
Rights for cohabiting couples
Whilst there is no direct legal duty between cohabiting couples to support each other, there are circumstances in which you may be able to protect your position, it is therefore always important to make an appointment with a specialist family lawyer to explore your options.
Educate unmarried couples
This is a hot topic amongst our lawyers as we are frequently approached by people who are unmarried but desperately believe they have some legal rights to the property and lifestyle they shared with their partner. One area where we all agree change is needed is in education. When a couple chooses to move in together there should be some easily accessible (and free) information explaining exactly what rights they have as an unmarried couple – namely none. That way individual couples could choose to put in place a cohabitation or living together agreement if they want some measure of protection.
Some of our lawyers would also like to see conveyancing solicitors being obliged to explain to unmarried couples buying a property together that there is nothing in family law to safeguard their set up and encourage them to take additional legal advice before setting up home.
One thing we all agree on is that we do not expect the law to change any time soon to specifically help unmarried couples who live together. Instead, the onus is on the couple to make themselves aware of how the law would treat them if their relationship were to break down.
If you are planning on moving in with your partner, it can be very useful to have a Cohabitation Agreement drawn up to set out your intentions. This can create clarity on what will happen in the event of a separation and can reduce future conflict.
Sue Harwood
Divorce & family lawyer, Cornwall
