The cohabiting couples rights are something which remains unclear to most people.
It is a popular misconception that if a couple live together they will gain certain rights by being a ‘common law wife’ or ‘common law husband’. There is no basis in English law for this. There is no such thing as a ‘common law wife’ or husband, but unfortunately this is something that two-thirds of cohabiting couples wrongly believe.
If you and your partner aren’t married or in a civil partnership you have very little legal rights and protection if you break up. It doesn’t matter if you’ve lived together for years or have children; cohabiting couples are not legally recognised as a couple, making it very difficult to claim a share in the family home or your partner’s finances if you split.
Cohabiting vs Marriage
How do the legal rights of cohabiting couples rights differ from a married couple?
1. If one cohabiting partner dies without leaving a will, the surviving partner will not automatically inherit anything – unless the couple jointly own property. A married partner would inherit all or some of the estate
2. An unmarried partner who stays at home to care for children cannot make any claims in their own right for property, maintenance or pension-sharing
3. 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
4. An unmarried couple can separate without going to court, but married couples need to go to a court and get divorced to end the marriage formally
5. Cohabiting couples are not legally obliged to support each other financially, but married partners have a legal duty to support each other
6. If you are the unmarried partner of a tenant, you have no rights to stay in the accommodation if you are asked to leave – but each married partner has the right to live in the “matrimonial home”
What are legal rights of a cohabiting family?
If you separate from your partner you will have very few rights unless any money or property is in joint names or you have entered a cohabitation agreement which sets out the financial arrangements in the event you decide to go your separate ways.
When married couples separate, the law permits courts to divide property and finances in a manner that is fair to both partners. When unmarried couples separate, even if they have children together, the partners do not have the same rights.
If your name isn’t on a deed or rental agreement, you do not automatically have a right to stay in your home. Even if you’ve put money into your home by paying bills, helping with the mortgage or deposit, you could be asked to leave your home and be left with nothing.
If you have children together your partner would still have obligations to support them, however they wouldn’t need to support you.
What can I do to protect myself?
As the rights of Unmarried Couples are not as protected as they are for married couples it is always a good idea to consider entering into a contract with your partner to decide how money and property should be divided if you should separate. This can be in the form of a cohabitation agreement for unmarried partners or a declaration of trust.
· Cohabitation agreement – this sets out your joint intentions for things like finances, property and arrangements for children if you split up. A cohabitation agreement can be completely bespoke and cover whatever you both agree on – from how to handle support of a partner who gave up their career to have children to who would get the dog.
· Declaration of Trust – this sets out how you want to own a property and in what shares, and can also cover what happens if you split up. If you are purchasing property together but not contributing equal shares, a declaration of trust can provide for each person to get back a fair portion of what they’ve put in to the property when it is sold. For example, if one partner’s parents provide a loan for the deposit, a deed of trust can record this contribution and ensure they are paid back if the couple splits and they sell the home.
To talk through any questions you have on your rights as a cohabiting couple or your rights if you have split up and are not married please email or call Paul Prentice at paul@prenticefamilylaw.co.uk or 01483 237 989 for a free no obligation call.