There are almost 7 million cohabitants in England and Wales, but many unmarried couples are unaware that their partnership is not eligible for basic legal protection – particularly when it comes to separation, children’s issues, and will disputes. Under current legislation, cohabiting couples are not, unfortunately, afforded the same protections as married couples, and must be careful to take steps to assert their legal rights.
The best way to do this is with a cohabitation agreement – a formal document much like a prenuptial agreement – which sets out the potential division of assets, share of property, and intentions for co-parenting in the event of separation. Other legal protections, such as a will, powers of attorney, and a declaration of trust, can also help to safeguard couples who are not married or in a civil partnership. For a rundown of the main areas to consider as a cohabiting couple, read our checklist below and contact your solicitor asap to help you to draw up the appropriate legal documentation:
Children and step-children should be named on any cohabitation agreements or wills to make sure they are cared for properly should something happen to either or both of you, or should you decide to separate. Cohabitants are eligible for child maintenance for biological children but you may need to seek further provisions for step-children. In all cases, it’s important to consider how you would support any children if you decide to split up in the future and set out plans for maintenance in a cohabitation agreement.
Property and Living Arrangements
The best way to protect your individual and joint stake in any property is to draw up a declaration of trust in addition to setting out your shares in a cohabitation agreement – particularly if it is owned by one party but not the other. Cohabiting couples have very little protection when it comes to living arrangements and assets unless there are clear intentions set out in a legal document like a cohabitation agreement that declare your intent to split the assets, or allow one or other party to remain in the family home following separation. For more information on your housing rights as a cohabitant read our blog on the subject here.
Savings, Pensions and Investments
Cohabitants with joint assets are automatically entitled to a 50% split in the event of separation but joint accounts are at risk of being frozen without a cohabitation agreement. And when it comes to individual finances, cohabiting couples are not eligible to divide their assets after separation unless there is an agreement in place. The same applies to pensions – cohabiting couples must specifically nominate their partner to benefit from one another’s pension payments in a will or cohabitation agreement as they will not automatically be given the right to do so.
Wills and Powers of Attorney
It’s important for everyone to have an up-to-date will, but it’s essential for cohabiting couples. Without a will, cohabitants have no automatic rights to inheritance or assets, and without lasting powers of attorney in place, they may not have the right to be consulted on medical treatment for their partner or permission to handle their financial affairs should they be unable to do so. Made in conjunction with a cohabitation agreement, wills for cohabitants should detail clearly a couple’s intentions for their children, assets and property to protect them legally.
Separation as a Cohabitant
A cohabitation agreement is particularly useful in the case of separation, since cohabiting couples lack many of the automatic protections that married couples and those in civil partnerships are afforded automatically. There are, however, several options for dispute resolution for cohabiting couples, such as mediation, which helps couples to work collaboratively to come to an agreement about their separation. Mediation is legally binding and the process can be helped enormously by having a cohabitation agreement to back up your decisions.
Until UK family law catches up with the millions of cohabiting couples in England and Wales, it’s important to ensure that your legal rights are protected as an unmarried couple. There is no such thing as ‘common law marriage’, no matter how long you have been together or whether you have children, and many people find out too late that they lack basic legal protections when it comes to separation or bereavement. The first step is to draw up a cohabitation agreement and make sure you have an up-to-date will that sets out your intentions for children, assets and property. To speak to one of our expert family lawyers about making a cohabitation agreement, mediation, property, declarations of trust, wills and probate, or any other legal issue to do with cohabitation, get in touch at www.franceslindsay.co.uk.cohabitation, cohabitation agreement, declaration of trust, divorce, living together agreement, making a will, property law, separation, wills and probate