The Myths and Facts of Cohabitation: What are your Legal Rights?

November 21, 2018

Tags:

There are many areas of law where the general public’s understanding of the law has been distorted by years of rumours, or media stories designed to sensationalise actual events. Very few have become as distorted as the myths surround the rights of cohabitees – that is people that live together in a relationship but aren’t married. Here on the Family Law in Partnership blog we are going to separate the myths from the facts.

  1. MYTH – If you live with someone for a certain period of time you become common law husband and wife.

This is simply not the case. At no point do cohabitees become anything other than cohabitees – unless they get married or enter into a civil partnership. The court simply cannot apply divorce laws to cohabiting couples, regardless of how long they have lived together.

  1. MYTH – we’ve been together for ages and have children, so if we split up I will get some money to help me.

This is the most dangerous myth that exists. The law relating to cohabitees is dramatically different to the law relating to married couples.  For cohabitees any assets that either person has in their sole name generally remain their property – no matter how long they live with their partner. In extreme cases couples have lived together for decades and because one person owned the house they lived in they remain entitled to that house, and the other person is not entitled to anything. This may be despite the fact that they have supported the family and brought up children. To claim a share of a property held in your partner’s sole name, you would have to show that you had both intended that you should be treated like a joint owner, which can be very difficult to prove.

If there are jointly owned assets (such as a property) then it’s likely both people will be entitled to a share in this asset. The exact shares will depend on anything they specified (in writing) when they bought or acquired the asset, or their intentions at the time (this is notoriously difficult to establish as many people do not have explicit conversations when buying property or other items together, let alone commit their intentions to paper), or whose money paid for the asset.

If you have dependent children then, in the event of a separation, the parent with care would be able to obtain maintenance for the benefit of the children, and potentially help with meeting the children’s capital needs, like housing. However, that parent would not be able to obtain additional maintenance for themselves in the same way as married people potentially can, and in most cases, any property bought to give the children a home will go back to the other parent once the children grow up, leaving the parent with care to start from scratch later in life.

  1. MYTH – we will inherit each other’s assets when we die even though we haven’t made a will.

If you live together and are not married then in law you are not each other’s next of kin. If you have not made a will then if either one of you were to die, any assets that form part of your estate would pass to your next of kin NOT YOUR PARTNER. This could be a distant relative that you haven’t met. It could mean that your partner could not then stay in the home that you have shared. If you live with someone and you are not married then it is a must that you make a will setting out what should happen to your assets on your death.

  1. MYTH – we’re not married but we have the same rights in connection with our children.

It may surprise you to hear that, if you are an unmarried father, you may not have the same rights with regard to your children as you would have if you were married to the child’s mother. You will only have parental responsibility for your child if you were present when the birth was registered. If you have children that were born before 1st December 2003 then you may not have parental responsibility for them – even if you were present when the birth was registered. Having parental responsibility means that you can consent to emergency medical treatment for a child and obtain information from their school about the child’s progress. Without parental responsibility you technically do not have the right to do this.

  1. MYTH – the legal situation with regard to cohabitees will change in the near future

The Law Commission looked at the issue of relationships between cohabitees and the potential difficulties faced by partners (especially the weaker financial partner) on separation. They reported back in 2007 and the recommendation of the report was that reform was needed because of the uncertainty of the current situation. The government’s response has been to indicate that they do not intend to legislate on this issue in the current parliament. It is not yet known if this issue may make it onto the legislative agenda in the next parliament. There has been much campaigning on this issue by various organisations including Resolution.

Here are 5 facts to help you if you are in a relationship as a cohabitee:

  1. FACT – you need to know what the situation would be in the event that your relationship were unfortunately to break down. Everyone hopes that this won’t happen but the reality is that it can. Consider whether you own the property you live in jointly with your partner? Or if the property is rented is the tenancy in joint names? Only once you are aware of your true position can you know if you might be at a disadvantage.
  2. FACT – you should be clear with each other about your intentions with regard to financial matters. When you buy property together is it your intention that you own it equally?  The solicitor advising you in connection with the purchase of any property should explain how you can own the property. Check and double check that your intentions will be reflected in the way you own the property. If you intend money to be the equal property of both of you then ensure it is kept in a joint account.
  3. FACT – make a will. Ensure that you understand what will happen in the event of the death of either one of you and that the legalities reflect your intentions.
  4. FACT – talk to each other about money matters and your children. Check that you are both in agreement about how your personal arrangements will work. Consider entering into a cohabitation agreement so that you are making your joint intentions explicitly clear.
  5. FACT – take legal advice if you think you might need to. These issues are too important to ignore.

If you would like to talk to someone in confidence about your relationship then please do give any of our experienced family and divorce lawyers at Family Law in Partnership a call. There is no obligation to take any further steps but it is important that you understand your own legal position. Call us on T: 020 7420 5000 or E: hello@flip.co.uk

For further information visit our webpage on the rights of those who live together.