Cohabitation (Living Together Unmarried)

Living together unmarried

Those who choose to cohabit should be aware that they do not actually qualify for any special legal protection if their relationship should break down – the relevant legal status is restricted to those who are married or in a civil partnership.

The idea of common law marriage is simply a myth under the legal system in the UK. Should the relationship break down between unmarried people, the law will have no say in what is fair or reasonable unless you have prepared in other ways.

Fortunately, if you do not wish to officially partner but want to ensure the future security of both participants should the unthinkable happen, there are some steps you can take to protect yourself. Essentially, you should perform the following three actions:

• Ensure that you are jointly owning or renting your house in appropriate shares
• Sign a Cohabitation Agreement
• Write a Will

The House Always Wins

One of the biggest problems that arises from “unofficial” couples who break up while living together is the issue of who is entitled to the house. With a few exceptions, explained below, the two members of the couple do not have any legal responsibilities to one another, which means that one of them can be left in the lurch with regard to supposedly shared property.

Homes are the largest investment most of us ever make, but many people do not consider the possibility of a split and may allow the house to be placed in one partner’s name. It may seem obvious from the outside, but a lot of people do not consider that this could lead to disaster.

The fact is that couples who are not married or in a civil partnership do not have any right to the other person’s property should they split up, nor is the other person expected to pay maintenance in any way. Whoever owns the property is the owner, and, as far as the law is concerned, the other member of the former couple does not get a look in.

This means that a house which is in the name of one member of the couple belongs exclusively to that person once they separate, unless their ex-partner can demonstrate “common intention”, meaning that they can prove that both partners had agreed that the property was shared. There are a variety of ways this can be shown, including:

• A verbal or written agreement to this effect (though if it is the former, it can be very difficult to prove the conversation ever took place)
• The other partner having contributed financially to the purchase price of the property in order to justify trying to claim a share of it
• The other partner having acted to their own detriment in a way which can only be explained by the understanding or belief that they had a share in the property – for example, selling other property they owned, paying household bills in full while the other partner paid the mortgage, and so on

It is therefore possible for a partner who does not legally own any shares in the property to claim what they should be entitled to – but if the other partner refuses to budge on the issue, it will likely involve a lengthy and expensive legal battle before they are able to claim.

The responsible thing to do is buy any property jointly, with both people named as owners of the house. This can be done in two very different ways, i.e. as joint tenants and tenants-in-common.

Joint Tenants or Tenants-in-Common?

It’s important to spend some time considering whether a joint tenancy or a tenancy-in-common would be of greater benefit for your needs.

A joint tenancy is the normal practice for partners, particularly married couples. This is because joint tenants both own the entire property jointly, meaning that, if one person should pass on, the other tenant will automatically inherit the entire property.

The other option available is tenants-in-common; while both owners have a share of the property, it is a distinct percentage based on what has been agreed. By default, a couple will own half of the property each, but it is also possible to divide it up with different percentages based on how much each person has invested in the property. The point of a tenancy-in-common is that, no matter what, the share of the property in one person’s name will stay in their name – even if they should die, the other partner will not automatically inherit that share, and it will instead become part of the estate of the deceased, which may be granted to anyone elected in their Will.

If you hold a joint tenancy and you split with your partner, one of the most important things to bear in mind is that you can sever a joint tenancy, which will transform it instead to a tenancy-in-common. This is an advisable move since it means that you now have your own distinct share in the property which is yours and yours alone.

Cohabitation Agreements

A cohabitation agreement is a useful document for those who are living together but do not intend on officially coupling through marriage or a civil partnership. The cohabitation agreement essentially allows a couple to formalise responsibilities and duties relating to the household so that any breakdown of their relationship will not lead to acrimony over the finances that either partner has contributed to the upkeep of their property and so on.

The reason that a cohabitation agreement has this level of power is that, if signed by both partners, it can constitute a contract (just as long as it abides by the necessary requirements under contract law). This means that a properly drafted cohabitation agreement is legally binding and means that both parties must act as they promised. It is advisable to get a solicitor to check over these agreements beforehand to ensure that they will do as the signatories wish.

The purpose of a cohabitation agreement is twofold:

• Firstly, to set out the responsibilities of each partner within the household, establishing who pays which bills and who owns which parts of the home and other property
• Secondly, to set out provisions should a split occur which establish who is entitled to which assets from the home and who is responsible for continued payment of bills, etc

The couple should be sure to include within the agreement:

• Their personal details for identification
• Details of any property they may jointly or individually own
• Any debts owed by either partner, whether incurred prior to the relationship or during it
• What is to be done with regards to any children, either currently existing or planned
• Whether the couple wish the document to be legally enforceable
• Who is responsible for paying specific bills
• What should be done if the couple should split up

Death

A more morbid topic that couples may wish to consider is the cold embrace of death. Unless married or in a civil partnership, what happens to property and assets after the death of one partner will be determined by intestacy rules if they did not make a Will. These rules mean that the partner will be entitled to nothing from the deceased’s estate – their possessions and property will automatically pass to their next of kin (excepting situations where they have had the foresight to create a joint tenancy as detailed above). Depending on circumstances, this could be a less than desirable outcome – if no appropriate family can be found, the estate will even pass to the government over the surviving partner.

An unmarried partner to a deceased person will also not be able to apply to administer the estate of the deceased, due to not being a relative.

Therefore, if two people are in a serious relationship but do not have any plans to formalise it in any other fashion, it is important that they each make a Will. This will ensure that the estate of the deceased is distributed as per their wishes in life, and their survivor will not be unexpectedly left with nothing. If circumstances should change in the testator’s lifetime, a Will can always be altered or even discarded entirely – it is not an unalterable or inflexible document – but it does mean that if their life should end unexpectedly, there will be legal recourse for their partner.

Our section on making a Will has all the details you need on this topic.

Children

If the parents of a child are unmarried, then only the mother will have guaranteed, automatic rights in respect of the child. However, since 1 December 2003 (under s111 of the Adoption & Children Act 2002), an unmarried father of a child will also have automatic parental responsibility as long as his name is on the birth certificate. If not, the mother alone will have parental responsibility for the child, which covers all aspects of his/her welfare and upbringing.

An unmarried father can also acquire joint parental responsibility if the parents have entered into a Parental Responsibility Agreement (see below). Fathers can also apply to the court in order to obtain an order.

The father can apply to the court for joint parental responsibility, a residence order (i.e. that the child live with him rather than his/her mother), or for a contact order (i.e. that he should be entitled to see his child on a regular basis). However, the parental responsibility of the mother cannot be removed except through adoption.

If an unmarried couple splits up, the mother will automatically have the right to look after her child in a manner and place as she sees fit, and the father will not be able to challenge her unless they entered into a Parental Responsibility Agreement or he has a court order in his favour. However, an unmarried father without parental responsibility does still have some rights with regard to his child.

Parental Responsibility Agreement

A parental responsibility agreement arises when a mother and the unmarried father of her child agree to share equal responsibility for the children. This means that he will assume responsibility for the child should the mother be absent, and he will also have a say in any important decisions regarding the welfare of his child.

You can set up a parental responsibility agreement with a template downloadable from our free legal documents section. The parents will need to complete the form and then affix their signatures with witnesses present, after which they can be taken to a family court in order for an appropriate official (a Justice of the Peace or a suitable registrar) to finalise them.

The agreement will become legally active when the Principal Registry for the Family Division has received them in their finished state. Both parents will receive stamped copies of the document.

Cancelling a Parental Responsibility Agreement

The usual application procedure for cancelling a parental responsibility agreement involves making an argument in court as to why this should be done, although an application can also be made on behalf of the child or children involved if it is suspected they are being neglected or abused.

If neither of these situations arises, the parental responsibility agreement will automatically cease to be in effect once the children in question reach the age of eighteen.

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