What legal rights do cohabiting couples have?

Contrary to popular belief, living together as a ‘common-law’ couple does not automatically provide you with the same legal rights as married couples, or those in a civil partnership. It’s important, therefore, for cohabitees to make arrangements to protect their financial rights. The best way to do this is to draw up a cohabitation agreement (sometimes called a ‘living together agreement’) – a legal document much like a prenuptial agreement – which sets out fair provision for finances, property and children in the event of separation. If you own property, you should at the very least have a Declaration of Trust setting out your shares in the property and how the sale or transfer of the property will be dealt with in the event of separation. This is particularly important if one of you has made a bigger financial contribution to the purchase than the other.

The number of cohabiting couples has doubled in the last twenty years, but unmarried couples who live together (even if they have been together for a very long time!) are yet to be awarded similar legal rights as their married counterparts. If you don’t yet have a cohabitation agreement or declaration of trust, it’s essential to know what you are entitled to and what safeguards to put in place – otherwise you could end up losing out on a fair settlement.

Children

• Over 1.8 million children live with cohabiting parents in the UK – twice the amount in 1996, according to the Office for National Statistics;
• Cohabitants are eligible to claim child maintenance from former partners, but further provisions must be put into place to cover step-children, or children who are not biologically related to both parents; you will not be entitled to maintenance from a former partner if you are not married. Child maintenance may not be enough to support the family on its own.
• A cohabitation agreement can set out detailed plans for children in the event of separation, including who they will live with, who will remain in the family home, and how you intend to split the cost of childcare, expenses and education;
• Updating your will is the best way to secure your children’s future should something happen to one or both of you. Child arrangement and special guardianship orders can also provide legal documentation of your wishes.

Property

• Property usually comprises the largest asset of a separating couple, but dividing up property is not always straightforward for cohabitants;
• Married couples and couples in a civil partnership have legal rights to property during separation regardless of how much each person contributed to its purchase or mortgage payments, but these rights do not automatically apply to cohabiting couples unless the property is jointly owned and even then it might not be plain sailing;  
• To protect your investment, you will need to draw up a declaration of trust or cohabitation agreement to set out what stake each of you should have in the property if it is owned by one person or as tenants in common if you decide to split or sell; otherwise you might find yourself having to make a claim under the Trust of Land and Trustees Act 1996 (TOLATA) for your share of the property, which is likely to be very expensive.
• For more information on your housing rights as a separating cohabitee, read our blog on the subject here.

Savings and investments

• If you have jointly-owned savings and investments, you will only be entitled to 50%. Without an agreement you will not be able reclaim your contribution – even if it is greater than your partner’s – if you choose to divide them;
• If you want your cohabiting partner to have rights to any other personal savings and investments in the event of separation or death, you must include them in a cohabitation agreement or will;
• If you die without leaving a will your estate (which could include the property you were living in if it is solely owned, or owned as tenants in common) will pass according to the rules of intestacy, which means that your partner will receive nothing from your estate.

Joint accounts

• Joint banking accounts owned by cohabiting couples that require both signatures should always be included in a cohabitation agreement. It is probably better to have an either signature joint bank account to ensure you both have equal access – otherwise the money could be frozen or withheld in the event of separation or death.

 Pensions

• Unmarried couples do not have automatic rights to each other’s pension pot. Spouses and civil partners may receive ‘death-in-service benefits’ or a ‘widow’s pension’ from a deceased partner’s pension, but cohabiting couples will need to specifically nominate their partner in a will or cohabitation agreement.

Next of Kin & Lasting Power of Attorney

• Remember too that if you are not married, your partner will have no rights to be consulted about any medical treatment you may require, or give consent if you are unable to do so. Nor will they be able to deal with your property or affairs if you are not in a position to do it yourself.
• You can appoint your partner as your attorney by consulting your family solicitor and executing a Lasting Power of Attorney for your Health and Welfare and/or your Property and Affairs.

Until the law changes, cohabiting couples must be careful to protect their assets and partnership with the appropriate legal documents and agreements. All these documents are easy to arrange, and will provide you with reassurance and legal protection if the worst should happen. Use our checklist below to make sure you and your partner are covered.

Cohabitation Legal Checklist:

1. First, contact your family law solicitor to draw up a cohabitation agreement.
2. While you’re there, arrange a Declaration of Trust to establish your shares in any property you own together.
3. Next, assign lasting power of attorney  to protect your family and assets in the event you are unable to make your own decisions in the future.
4. Lastly, draw up or amend your will to ensure your property and assets are passed onto the people you love after your death.

Visit us at Frances Lindsay & Co to get everything in order – our experienced family lawyers are experts in TOLATA claims and will be happy to talk to you about your options as cohabitants, whether you’re about to move in with a new partner or going through separation.

Click here for more information on the benefits of setting up a cohabitation agreement, or read more about your rights as a cohabitee here.