Cohabiting couples often assume that moving in together as a couple creates similar rights and responsibilities as marriage – so-called common law marriage – however this does not have any legal recognition.
If you are moving in together you should know how cohabiting affects your legal position and how you can protect yourselves should your relationship end or one of you dies. Our family and matrimonial specialist Lisa Cogger here at Bowcock & Pursaill Solicitors explains more and answers your most common questions…
YOUR LEGAL STATUS
Q. Is it true that if you live with someone for so many years then you have some legal status even if you’re not married?
No – a ‘common law spouse‘ has no special legal status. You are either married (or in a civil partnership) or not. If the relationship breaks down, being a ‘common law’ wife or husband does not give you a right to claim against your ex-partner for maintenance or a share of their assets. However, it may be possible for a parent to make a claim on behalf of a child they continue to look after.
Q. Is there any way to formalise certain things in our relationship, like ownership of our house, for example?
Yes – a cohabitation/living together agreement can be drawn up. A living together agreement outlines the rights and obligations of each partner towards each other. Financial issues are key to a cohabitation agreement. It should include what rights each partner has regarding property you live in, who owns other assets and who is responsible for any debts. It’s also common to explain how expenses will be shared while you live together. Where you have children, either jointly or with a previous partner, the cohabitation agreement should also address this. If you want to do this you will need legal advice in order to ensure it is legally enforceable.
YOUR MONEY & POSSESSIONS
Q. What happens to money held in a joint account if we split up or something happens to one of us?
If you have a joint account, then both you and your partner have access to the account, regardless of whether only one of you pays into it. On the death of one partner, the other partner becomes entitled to the balance and can continue to have unlimited access to the account. However, a proportion of the balance will be taken into account when calculating the value of the estate of the person who has died. If you separate from your partner, you should consider closing an account in joint names to avoid your partner accessing the funds or running up debts which will be your responsibility.
Q. My partner and I have bought some furniture etc. for our house but some we bought from our previous homes – what happens to these if we split up?
Ownership of assets like these is usually decided by who paid for them, although something given as a gift does belong to the receiver of the gift. However, this can be difficult to prove. This means items you pay for out of a joint account, for example, you both own in equal shares, but if you buy something with your own money it belongs to you alone.
Q. How can I make sure my partner is entitled to my pension and any other company benefits if I die?
Your partner’s entitlement to your pension will depend on the pension scheme’s rules. Some schemes offer benefits to an unmarried partner. Similarly, your employer may extend benefits such as health insurance to unmarried partners. Consult your employer’s HR department/manager or pension scheme trustees to find out the rules. If you are not married or in a registered civil partnership, your partner is not entitled to any state pension benefits or bereavement allowances based on your National Insurance contributions.
Q. My partner’s children live with us – what rights and responsibilities do I have towards them?
If you are the child’s natural parent, you automatically have a financial responsibility for that child, if not, you don’t have any automatic rights or responsibilities. However, it is possible to acquire parental rights through a number of ways e.g. applying to court for a Child Arrangement Order to obtain parental responsibility for a child. For this you generally need consent from anyone who already has parental responsibility for the child, otherwise this can become difficult and expensive if your application is opposed. You can also obtain parental responsibility through marriage.
Q. When we had children I left my job to look after them and I’m reliant on my partner to pay the mortgage and bills. What rights would I have if we were to separate?
Unfortunately, the law does not afford you the protection that it should. The best way for peace of mind is for you and your partner to enter into a Cohabitation Agreement stating the ownership of the home and other assets, dealing with financial arrangements during cohabitation and setting out how the finances will be dealt with upon separation. If you jointly own a property with your partner, you can enter into a declaration of trust setting out your respective shares in the property as well.
Q. I moved into my partner’s house but I pay half towards the bills including the mortgage – would I be able to claim part ownership of it if we broke up?
If you buy a property as an unmarried couple then it’s a good idea to purchase it jointly, as there’s no automatic right to the other partner if the property is not in their name. However, even if you do not have joint ownership you may be able to demonstrate you are entitled to a share of it through ‘common intention’, which means there was an agreement between the couple that the property was shared. You could achieve this if you contributed financially to the purchase of the property or helped with mortgage payments, for example. If this is contested by your ex-partner, however, you may have to go to court.
Q. I’m moving in with my partner as we’ve bought a house together, but I’ve put more money into the purchase price. Is there any way of protecting the share I’ve put into it?
Yes – there is a way recording the differing amounts you have both paid into the property to avoid any future misunderstandings. This is where the terms ‘joint tenants’ and ‘tenants in common’ come into play. With Joint Tenancy, each party owns the whole of the property. On the death of one party, the whole of the property reverts to the surviving party. With Tenants in Common each party owns a specified share of the property. On the death of one owner, their share passes in accordance with their will, or in the absence of a will, their share will pass in accordance with the Rules of Intestacy. You may also need to draw up an appropriate deed of trust, setting out your rights to the property and what will happen if you separated so do obtain specialist advice on your particular circumstances.
Anyone interested in family and matrimonial legal advice can contact Lisa Cogger at Bowcock & Pursaill on 01538 370830 or email firstname.lastname@example.org