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. While you may think there is no need to get married or enter into a Civil Partnership, it is important to realise that you do not have the same automatic rights upon separation as spouses 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 properties will be divided according to standard property law as opposed to marital 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 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. This sets in place contingencies that come into play if the couple are to split, become ill, or worst-case scenario dies before the other. 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

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

Clarity

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 split up.

Financial Provisions

As well as the division of assets post separation, Cohabitation Agreements can list how household expenses are to be split 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 the parties with clarity for how much they need to contribute per month etc.

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 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 school.

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

Cohabitation Dispute Resolution

Our family lawyers have many years of experience dealing with cohabitation disputes, from those that are relatively straightforward 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 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 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 its value.

However, this does not apply to unmarried couples, meaning you or your partner could potentially be left with nothing if one of you dies without leaving a valid Will.

Our friendly, expert Will writing solicitors can help you create a Will that makes your intentions clear and ensure that your partner and children are taken care of if the worst happens.

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Common Questions About Cohabitation Agreements

What is a cohabiting couple?

A cohabiting couple is any couple that lives together on a permanent basis in a shared home without getting married or entering a civil partnership. This applies both where your home is rented, where 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?

While we advise any cohabiting couple to make a formal cohabitation agreement, there are certain circumstances where it is particularly important.

This includes:

Where 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.

Where one of you lives in a property the other owns – A cohabitation agreement can give you security, for example preventing your partner from requiring you to leave immediately if you separate.

Where you have children together – You can establish where they 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 pressure to sign the agreement
• Both parties should have made a full disclosure of their finances at the time the agreement was made
• The agreement must be fair to both parties