With no such thing as a “common law” marriage in the UK, cohabiting couples do not have the same legal rights as married couples. In the immortal words of Michael Caine “Not a lot of people know that”. It is a widely held mistaken view that if a couple have lived together for, some people believe six months or two years or any other period of time, that they somehow acquire the same legal rights as married couples. Sorry to disillusion you but it is completely wrong.
This raises several thorny questions.
What if they separate?
What is the position of one cohabitant living in a property solely owned by their partner perhaps acquired long before the couple met? In this situation it is highly likely that the non-owning partner will have absolutely no legal rights over that property. It is highly likely that the owning partner will be able to remove the non-owning one from the property without having to provide them with any funds whatsoever rendering them potentially homeless! This could occur whether the couple had been together for a short period of time or for say 25 years or more placing the non-owner in a very precarious position. I had the unpleasant task of explaining to one lady who had lived with her partner for more than 25 years in his house, that she had no claims whatsoever.
What about maintenance?
A cohabitant has no legal right to any maintenance from their former partner. If there are children then the partner who has care of the children can claim child maintenance from the other parent, provided they are the child’s biological parent. However they cannot claim any money for themselves. This leaves them very vulnerable if for instance they do not work and look after the children full-time, or only part part-time and cannot support themselves financially.
What if Mum and Dad have helped out financially?
Increasingly these days parents help their children financially to get on the property ladder. It is important that they ask themselves how they view this. Is it a gift or a loan? What they would wish to happen if their child were to separate from their partner?
What is the position on death?
If a couple are not married and there is no Will providing for their partner upon one partner’s death then the survivor would not inherit the deceased's estate. Consider how vulnerable that makes a partner in a situation where the deceased is the sole owner of a property? Again they are potentially rendered homeless.
Whilst there is provision under what is known as The Inheritance (Provision for Family and Dependants) Act 1975 to make a claim against an estate if one of the couple were being wholly or partially supported by the deceased immediately prior to the death, this can involve expensive Court proceedings. This is the last thing a grieving partner wants to be involved with at a time when their loved one has died. It is therefore very important to leave a valid Will so that the surviving partner is financially secure.
Should I have a cohabitation agreement?
If you are thinking of moving in with a partner, in advance of taking this important step you should consider issues such as how you will manage your finances jointly or how you will deal with any property if only one of you owns it in the event that you were to separate in the future?
A cohabitation agreement is a document that you can enter into with the agreement of your partner setting out these issues at the outset when your sense of fairness is likely to be more balanced, rather than leave it to the end of the relationship - should you unfortunately - separate when one’s sense of fairness can naturally be very skewed.
Whilst the law relating to cohabiting couples is not in alignment with the law relating to married couples, the Cohabitation Rights Bill is currently working its way through the House of Lords. Given the shape of the modern family becoming more diverse, you should watch this space.
Are you in need of a family lawyer? QS Amphlett Lissimore has offices across South London and are members of Resolution. We are committed to resolving disputes in a non-combative way wherever possible and believe this to be in the long-term best interests for you and your family.
If you would like to know more about our family law department call us on 020 8771 5254.
About the Author
Donna Rose is a solicitor and family mediator and a member of Resolution. She is also a member of The Law Society Advanced Family Law Panel. Whilst she is based in Crystal Palace office she is more than happy to travel across our other offices for your convenience.