Cohabiting


Cohabiting or living with your partner often creates misunderstanding and confusion about legal rights. Couples either believe that they have the same rights as a married couple because of common law or they have little or no rights at all. However, both of these assumptions are incorrect.

As a couple, moving in together is an exciting time and the last thing you want to think about is if something goes wrong. However, it is important to consider the legal implications this may have and what safeguards you can put in place if the partnership ends due to death or separation.

cohabiting

The majority of couples think that once they move in together, they are recognised in ‘common law’ and assigned the same rights as a couple who have been married. This is incorrect, as this type of partnership has no legal implications. In the eyes of the law, simply moving in with your partner does not automatically assign rights and there is no legal claim on the property of the other, regardless of the length of time you have been living together.

Furthermore, if a partner dies, the remaining partner has no legal rights over any inheritance which can be catastrophic for those left behind. Nevertheless, if children are involved and the relationship ends, the couple will have certain responsibilities and rights over the children. This applies if only one partner is the biological parent.

Rights and Cohabiting

As we have outlined above, just because a couple have been cohabiting doesn’t mean that they have rights to the property that they live in. Problems can arise when one partner moves into the property of another which is rented or mortgaged.

In relation to rental properties, it is the tenant named on the tenancy agreement has the right to live in the property and is accountable for meeting the rent payments. If partners are not named on the tenancy agreement as a tenant, you must;

  • Obtain the consent of the landlord before moving in

The tenant is able to vacate the property anytime after submitting their notice which is usually 30 days.

The partner who remains in the property has no rights to the property if the tenant named on the agreement leaves.

It is very similar if a partner lives in a mortgaged property. The only person who is legally permitted to remain in the property is the owner. Any other adult may be asked to vacate the property. When a property is owned, the owner is also permitted to sell the property and they don’t need to ask the partners permission.

In a scenario where you own the property, your partner may have certain rights in terms of finances once the property is sold provided that;

  • There is a written agreement in place to state that the partner who doesn’t legally own the property can claim a share of any sale proceeds
  • The non-legal owner makes a financial contribution to the property such as paying a fee towards mortgage repayments on the understanding that they are entitled to a share
  • A partner has made a court application to obtain permission to remain in the property to safeguard the welfare of the children

To support the rights of each party, some couples decide to own a property in joint names, but this can present problems such as;

  • One partner cannot force the other to put the property up for sale if they wish to leave. The only exception to this rule is if they have applied for an order in court.
  • Although you may have paid a significant sum in fees during the course of purchasing the property you would not normally be entitled to a higher share unless this has been agreed in writing
  • When a partner leaves, the remaining partner is often held responsible for any outstanding debt on the mortgaged property

Whatever the arrangement, it is always recommended that you seek legal advice to draft a cohabitation agreement in writing which clearly defines the rights and responsibilities of the couple. In the event that the couple separate in the future, it can help make the process easier and eliminate any further disputes.

cohabiting breakup

Finances and Possessions

There are no rules which state that cohabiting brings with it legal obligations to support each other financially while sharing the same property or in the event of a separation. What’s more, you don’t have any right to their possessions, investments or savings.

As a general rule, ownership of possessions or finances remains unaffected.

If you own certain possessions before cohabiting, they continue to be your sole property even if the relationship ends

If you have purchased something with your own finance, it is your property

If you make a joint purchase you will own shares which will equate to what you contributed

If something has been gifted it is classed as being your property. However, it can be difficult proving that it was a gift unless you have written evidence.

If there are any debts which have been taken out in both names such as loans or credit cards, each person is responsible for the debt. If your partner doesn’t keep up the repayments you can be liable for the outstanding debt. This also applies to any household bills such as council tax or utilities.

In terms of tax, cohabiting makes very little difference. Taxes continue to be collected in the in the usual way but any benefits that you are entitled to will be evaluated on you both as a couple rather than individuals so any income that your partner has will be considered and the amount of benefit you are entitled to may be less.

Children

In legal terms, you can only be involved in issues which relate to children if you have full parental responsibility. If parents are not married, the only person who has automatic parental responsibility is the mother and a partner can only assume parental responsibility in certain scenarios such as;

  • Where the partner is a father, they must be named on the birth certificate. This rule is applicable for any child who was born after December 2003.
  • A responsibility agreement is signed with the mother or the couple make their partnership official through marriage
  • A situation where your partner has been officially registered as the child’s guardian

When a relationship breaks down and a couple separate, various conditions of the separation have to be adhered to when children are involved;

  • The best interests of the child are of paramount importance and any decision about who they will live with going forward should be the most beneficial to the child
  • If a decision is reached where the child lives with the former partner and not the mother, maintenance may become payable by the absent mother

Separation can be difficult and sometimes problems can arise. Where childcare arrangements cannot be agreed, a court order can be sought which will decide how childcare should be managed

Death of a Partner

If you are cohabiting and one of you dies, the other has no legal right to claim any inheritance. If they are named as a beneficiary in the will, any assets they receive may be subject to inheritance tax. A remaining partner who has lived together for at least two years and who can demonstrate that they depended on their partner financially, are able to make a claim to the court for a financial settlement even if you are not named as a beneficiary.

You must be aware however that a claim of this nature is complex, costly and lengthy. It can also cause bad feeling if there are other beneficiaries involved and even if you are successful you may only receive a small proportion of your partners assets.

Owning a property in joint names is much more complicated. If you owned your property as joint tenants then you can continue with the lease if your partner passes away.

However, if you are tenants in common the share from the deceased partner will be dealt with under any terms outlined in the will. Depending on the type of tenancy, the names listed and the discretion of the landlord, you may be able to continue living in the property.

Cohabitation Agreements

Any couple planning on cohabiting should carefully consider the benefits of drawing up a cohabitation agreement. This is a legal document that can protect both parties in the event of death or separation. Although all of the agreement may not be enforced in a court of law, it can reduce the likelihood of any disputes arising or if a dispute does arise, it can be dealt with quickly.

Cohabitation agreements should be drafted by a solicitor and can include a range of terms such as;

Arrangements for ownership of the property and rights of the remaining partner to remain in the property

Parental responsibility for any children

Arrangements for lasting power of attorney so that one partner can make decisions on behalf of the other if they are unable to do so

Reviewing and where needed revising your will and ensuring that suitable provisions have been made

Checking and making any changes to financial arrangements such as life insurance, savings, investments and pensions

There is certainly a lot to take into consideration when cohabiting and putting in place the necessary arrangements can avoid a lot of issues later on if the relationship ends due to death or separation.

About the author:

This article was written by a member of the Expert Answers legal advice team. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.

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