Does cohabitation provide any legal rights similar to marriage?
Unmarried partners who live together, even for many years, do not acquire the legal rights afforded to married couples. A ‘common law marriage’ has no legal validity or recognition in the UK. If a cohabiting couple decides to split up or if one cohabitee dies, and they fail to put into place plans for such events, there may be significant problems. There are certain ways to increase the security of cohabiting couples and their families, such as creating a Cohabitation agreement or making a Will.
What is a cohabitation agreement?
Cohabitation agreements (also called 'cohabitation contracts' or 'living together agreements' in Scotland) can set out the rights and obligations of each partner towards each other. Creating an agreement can cover key aspects of your relationship and personal life, including:
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financial arrangements
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setting out which assets belong to each individual before they move in together
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taking steps to get parental responsibility for any children
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reviewing wills and creating lasting powers of attorney (LPAs) or Scottish powers of attorney
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specifying how any shared assets or debts acquired during the course of a relationship will be divided if the relationship ends
Cohabitation agreements are a way to clarify intentions from the outset and to avoid disagreements in the case of a relationship breakdown. In England and Wales, cohabitation agreements can be legally binding provided certain safeguards are met. This means that, so long as nothing that invalidates a contract has occurred (eg neither member of the couple was unduly pressured to agree to the agreement), the courts will usually follow its provisions.
In Scotland, cohabitation contracts are binding if they are drawn up by a solicitor. However, the courts will generally not enforce a cohabitation contract if it is not in the best interests of any children you may have or if it contains unfair terms. If a Scottish cohabitation contract is not drawn up by a solicitor it may not be legally binding, but it will still help to clarify a couple’s intentions from the outset and avoid disagreements in the case of a relationship breakdown.
Safeguards
In England and Wales, the following safeguards need to be met for a cohabitation agreement to be considered by the courts:
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both parties entered into the agreement freely and voluntarily (ie neither party was under pressure or duress to sign the agreement against their will)
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each party made full and frank disclosure to the other of their financial wealth (ie no assets or liabilities (eg debts) were hidden)
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each party received independent legal advice about the cohabitation agreement from the outset, and
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the cohabitation agreement is in the form of a deed and signed by both parties
The cohabitation agreement must also be kept up to date with major life changes (eg the birth of any children, disability, or loss of employment) in order for it not to become inappropriate.
What are your legal rights to a property when cohabiting?
Whether you move into your partner’s home, they move in with you, or you find a new place together, it’s important that you both take certain precautionary measures to avoid being left without a home if the relationship comes to an end.
In England and Wales, using a Declaration of trust allows you to record equity shares in a property if you are purchasing a house together. For example, you can set out that both partners share beneficial ownership (ie ultimate financial benefit) of the property. As joint owners, you both have equal rights to stay in the home. If you or your partner move into a house already owned by one cohabitee, the other partner may be able to claim a beneficial interest in the property if, for example, they contribute financially to home improvements or the mortgage.
In Scotland, an unmarried partner, who is not an owner of the property the couple lives in, generally has no automatic right to remain in the property if the owner withdraws permission for them to stay. However, they may be able to apply to the courts for the right to remain in the property. As this process is complex, you should Ask a lawyer for more information.
If you are renting, in England and Wales or in Scotland, ensure that both partners’ names are on the tenancy agreement. Cohabitees who are not married will generally only have rights to a property if both their names are recorded in formal documentation; even if you have rented somewhere together for years, you will only be entitled to stay in the property if you are a named tenant. If you are the unmarried partner of a sole tenant, you may want to convert the existing sole tenancy into a joint tenancy if the sole tenant and the landlord agree. This may also prevent issues arising if the landlord of the property discovers that somebody is living in the property who the tenancy agreement does not allow to do so.
Why should cohabitees consider making a will?
Unlike married couples, in the absence of a will, cohabitants won't automatically inherit any of their partner’s assets in the event of their death. Instead, the distribution of the deceased’s estate will be determined according to the rules of intestacy. This can mean that the surviving partner will not be entitled to anything at all. Therefore, it’s particularly important for unmarried people living together as a family to ensure they both make a Will (or Last will and testament for Scotland).
For more information, read Reasons to make a will, Intestacy rules and Intestacy rules in Scotland.
Does cohabitation affect child arrangements upon separation?
Only those with parental responsibility can make important decisions about a child's upbringing and welfare. The birth mother will automatically have parental responsibility for their child. Whether someone else (eg an umarried father or same-sex parent) has parental responsibility for a child will depend on the specifics of the situation. Those with parental responsibility have a duty to protect and maintain their child and provide them with a home. It also covers situations relating to decisions about schooling or medical treatment.
If a cohabiting couple separates, decisions about who the children should live with and what contact rights (ie rights to see and spend time with the child) each parent should have are based on the child's best interests. You can make informal arrangements for the amount of contact the parents can have with their child. If that isn't possible, parents can apply for a child arrangement order from the court, who will decide whether to grant contact rights based on the best interests of the child. For more information, read Child custody and Child custody in Scotland.
