Cohabitation and the Unmarried Family

Nowadays, it is very common for couples to live together without feeling the need to get married or enter into a Civil Partnership. Whilst you may think there is no need, it is important to fully understand that you do not have the same automatic rights upon separation that married couples or civil partners do.

A myth people tend to believe is that when you live with your partner, you automatically enter into a ‘common law marriage’ and are entitled to the same rights as couples who are married or are civil partners. If you and your partner separate, any property or properties will be divided according to standard property law as opposed to matrimonial law. In addition to property, you may not have guaranteed entitlements to other capital assets such as bank accounts, savings, pensions etc, and therefore it is always best to seek legal advice when going through a separation, even if you are not married or in a civil partnership.

Separating may cause more financial difficulty for some cohabitating couples and additional stress. We advise that anyone planning on moving in with a new partner to plan ahead and consider drawing up a Cohabitation Agreement.

Cohabitation Agreements

Cohabitation Agreements set out the arrangements for finances, property and children for couples who decide to move in together (but remain unmarried or in a civil partnership). This sets in place contingencies that come into play if the couple are to split in the future, become ill, or worst-case scenario, what should happen when one person passes away. A Cohabitation Agreement can be made at any time throughout the cohabitation, however it is advised to do this when you first move in, as things like this can often be forgotten about and put to one side.

Unfortunately, most people do not draw up a Cohabitation Agreement when they move in together and therefore find themselves in difficulty if they end up separating. If you find yourself in this position when separating from your partner, our team of Family Dispute Resolution experts can help you work through your finances and other practical issues. Our Family Law Solicitors can help to identify what you and your ex-partner are entitled to and assist you in reaching an amicable agreement over the division of assets wherever possible.

What Are the Benefits of a Cohabitation Agreement?

There are numerous benefits to having a cohabitation agreement, but the main advantages are:

Asset Protection: How can I protect my assets with a Cohabitation Agreement?

Cohabitation Agreements can safeguard your assets i.e. property, investments etc, as they allow you to clearly identify the legal ownership (of the property etc), set out your clear intentions in relation to the assets and ensure those assets are divided as per your agreement upon any separation.

Clarity: How can a Cohabitation Agreement help clarify Inheritance Tax?

Having a written document setting out your agreement often provides clarity for couples. The document identifies the rights and responsibilities of each party and can prevent arguments down the line, if you were to separate.

Financial Provisions: How can a Cohabitation Agreement add Financial Clarity?

As well as the division of assets post-separation, Cohabitation Agreements can list how household expenses are to be divided during the period of time you live together. This could include, for example, the contributions to bills, savings and debts etc. Having an agreement in place can provide clarity in this regard.

Child Arrangements: How can a Cohabitation Agreement help with Child Arrangements?

Cohabitation Agreements often include provisions for any children of the family. Whilst this may be in your Will, it is important to ensure the welfare of the children are protected upon any separation. This may include determining who the children will live with, financial contributions to their living expenses and important decision-making regarding things such as education.

Other benefits may include protecting inheritance rights, flexibility, and avoiding costly legal disputes.

Cohabitation Dispute Resolution

Our Family Solicitors have many years of experience dealing with cohabitation disputes, from those that are relatively straight-forward to those that are much more complex. Wherever possible, we will seek to help you achieve a mutually acceptable outcome without the need for Court action.

We offer various types of Alternative Dispute Resolution (ADR) for cohabitation issues, including mediation and, collaborative law. This can save you time, money and stress compared to pursuing Court proceedings. An out-of-court approach is often a particular advantage in cohabitation disputes. This is because the strict interpretation of the law you are likely to get in a Court arena often does not match what a couple may feel is fair based on their individual contributions during the course of their relationship.

Wills for Unmarried Couples

Having a valid, up-to-date Will is particularly important for couples who are not married or in a civil partnership, especially where they have children. This is because, under current English Law, you have no automatic right to inherit any of your partner’s Estate in the event of their death.

If a couple are married or in a civil partnership and one of them dies without leaving a Will, their spouse/civil partner will automatically inherit the first £322,000 of their Estate, plus half of everything else above this. If the deceased has no children, their spouse/civil partner will inherit their whole Estate, whatever the value.

This does not however apply to unmarried couples, meaning you or your partner could potentially be left with nothing if one of you passes away without leaving a valid Will.

Our friendly, expert Will Writing Solicitors can help you create a Will that makes your intentions clear and ensures that your partner and children are taken care of if the worst should happen.

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Common Questions About Cohabitation Agreements

What is a cohabiting couple?

A cohabiting couple is any couple that live together on a permanent basis in a shared home without getting married or entering into a civil partnership. This applies in circumstances when your home is rented, when you have bought a property together or if one of you is living in a property that the other owns.

Is a cohabitation agreement necessary?

Whilst we advise any cohabiting couple to enter into a formal Cohabitation Agreement, there are certain circumstances where it is particularly important, which includes:-

If you own a property together – Under the Law, you will both be considered to own 50% of the property, even if you contributed unequal amounts to the deposit and/or mortgage repayments. A Cohabitation Agreement allows you to set out exactly what percentage each of you is entitled to, pre-empting any potential future confusion and conflict.

If one of you lives in a property owned by the other – A Cohabitation Agreement can give you security, for example, preventing your partner from requiring you to leave immediately should you separate.

If you have children together – You can establish where the children will live if your relationship ends and how they will be supported financially.

Do cohabitation agreements hold up in court?

For a Cohabitation Agreement to stand up in Court, the following will need to apply:

• Both parties should have received independent legal advice before they signed the Agreement
• Neither party should have been under undue duress or pressure to sign the Agreement
• Both parties should have made a full disclosure of their financial circumstances at the time the Agreement was made
• The Agreement must be fair to both parties