Cohabitation (Living Together Unmarried)

Living together unmarried

More and more people, both hetero- and homosexual, are choosing to live together without entering into marriage or a civil partnership. Many heterosexual couples believe that they will automatically qualify for some protection under the law if their relationship breaks down. However, as with gay couples (except those that have entered into a formal civil partnership), their relationship with one another is not recognised as having any legal standing, and they have no special status in the eyes of the English legal system. If you are married and are splitting up, our Divorce section offers specific advice relating to these circumstances.

If you have just been living together then you should be aware that there is no such thing in English law as a "common law wife" (or husband for that matter). If you live together and your relationship breaks down then it is each man or woman for themselves.

There are 3 essential things a couple who are going to live together should do:

• make sure the house/tenancy etc is in joint names, in appropriate shares 
• set up a simple Cohabitation/Living Together agreement
• make Wills 

The house

More and more couples now live together without getting married, but, no matter how long the relationship, the law still effectively treats them as separate individuals with no rights or liabilities to each other if the relationship ends (unless they are same sex couples who have entered into a formal civil partnership).

This has some far-reaching consequences for such couples (of whatever sex or combination of sexes), particularly in relation to their home - most people's biggest asset. The majority of couples fail to consider this until after the relationship has ended.

Unlike married couples, unmarried couples have no basic rights to their partner's property or to maintenance if they split up. Basically what is his is his, what is hers is hers, and what is jointly-owned needs to be divided. 

This applies to the home as well. Therefore if a house is bought in joint names (either as beneficial joint tenants, or as tenants-in-common - scroll down more info on these terms) then it should be split accordingly on separation, and either party can force a sale of the property to realise their share. If the parties are contributing unequally to the purchase price, or to payments on the property, then this should be reflected by being designated as tenants-in-common and holding unequal shareholdings (say 70% and 30%), rather than the equal shareholdings of beneficial joint tenants. 

If the property is in the sole name of one party then basically it remains that person's property on separation, unless the other party can establish that there was a common intention that they would be entitled to a share in the property. How do they do this? Here are a few examples:

• It may have been agreed in a simple conversation (proving it tends to be the problem!), or in writing between the parties at some time 
• The other party has directly contributed to the purchase price the courts are likely to accept that at least part of the property should have been in their name
• There has been an "understanding" between the parties and the non-owner has acted to their detriment as a result (e.g. contributed to mortgage repayments, paid household bills, or, perhaps, sold their own property) then the courts may agree they should share in the property. 

The parties can, of course, come to an agreed settlement, but if not, such disputes can become messy and expensive. 

It may not sound too romantic, but it is quite legitimate for unmarried couples to enter into an agreement when they start living together to try and cover any disputes on property if they should split up. It is worth considering.

If you own your property as joint tenants and your relationship breaks down, one of the first things that you should do is to sever that joint tenancy. This converts the joint tenancy into a tenancy in common, which means that you will have a distinct share in the property that will NOT automatically pass to your former partner/spouse.

Joint tenant s or tenants-in-common?

If you buy a house jointly with someone else (your spouse, lover, a relative or friend) then it is important to decide whether you will own the property as joint tenants, or tenants-in-common. So what's the difference?

If you are joint tenants then each of you jointly own the entire property (technically it is held by you in trust for yourselves). The consequence of this is that upon the death of one party their interest in the property passes automatically to the survivor. It is therefore usual for married couples to buy a property as joint tenants.

If you decide to hold the property as tenants- in- common, then each owner has a distinct share in the property. If there are two owners this will automatically be half each, if three a third each, and so on. Alternatively you can decide between yourselves what share of the property belongs to each owner. For example, if 2 friends were buying a property together and one contributed more to the purchase price than the other, this could be reflected in the respective shares of the property, say 75% and 25%. The important point is that each of the tenants-in-common always owns their share of the property, and is only entitled to that percentage of the sale proceeds, if sold during their lifetime. If they die, then their share of the property forms part of their estate. It does not automatically pass to the other owner(s).

So if you are buying, take a bit of time to think through your own situation and make sure you discuss it with a solicitor.

Cohabitation agreement

A cohabitation or living together agreement can give financial security to those who are in a committed relationship but do not endorse the idea of marriage. Couples who merely live together have no automatic rights to each other’s money and would be prudent to establish this agreement, which is a legally binding agreement recognized by the courts. It may save much heartache if the relationship breaks down and allow for a cordial parting of ways.

A cohabitation agreement is a contract between the two partners in a relationship, which is legally enforceable as long as it adheres to the requirements contract law. To make sure that is in indeed legally enforceable, both parties should consult a solicitor before signing it.

The agreement has two chief purposes:

• To govern the couple’s day to day life and handle things such as payment of bills, home ownership and ownership of assets
• To make provisions for a breakup by determining entitlement to assets and payment of bills

Things that the agreement should cover are:

• Personal details of the couple
• Property, both joint- and individually-owned
• Debts carried into the relationship and incurred during it
• Arrangements for children, current and future
• Whether the couple intend the agreement to be legally binding
• Who pays which bills (gas, water, electricity, etc)
• Explicitly what should happen were the relationship to end

Death

The other essential matter for unmarried couples to consider is what might happen when one of them passes away.  Unless they make a will in favour of their partner, then, should they die, their estate will pass to their immediate family under the intestacy rules, rather than to their companion (except their share in the home if they are joint owners and hold as beneficial joint tenants - see above). 

An unmarried partner will not even be entitled to take out a grant of letters of administration and administer their partner's estate, as they are not a relative of the deceased. 

If the relationship is a serious one, then one of the first things they should do is to each make a Will. A Will can always been amended, changed or added to, but if there is no document at all, then the deceased's estate will simply pass to the appropriate family members or even the Government, rather than to the person's partner.

To find out how to make a Will, visit our Wills section.

Children

If the parents of a child are unmarried, then only the mother has any automatic rights in respect of the child. She alone will have parental responsibility for the child, which covers all aspects of his/her welfare and upbringing. However, since 1 December 2003 (s111 of the Adoption & Children Act 2002) it is now easier for an unmarried father to acquire similar rights. All he needs to do is to register the birth of the child with the mother.

An unmarried father can also acquire joint parental responsibility or in extreme circumstances sole 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). 

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. 

Parental responsibility agreement

This is an agreement between a mother and an unmarried father to bestow equal responsibility for their children upon the father.  It grants the unmarried father authority to have responsibility for his child in the absence of the mother and gives him a right be consulted when important decisions are being made with regard to the child(ren)’s welfare.

The necessary forms can be either downloaded from our DIY legal documents section. These forms must be filled out and signed by the parents in the presence of witnesses, after which they need to be returned to the family court, where they are signed by a Justice of the Peace or a registrar with the appropriate authority.

The agreement is legally active once these forms have been sent to the Principal Registry for the Family Division, after which stamped copies are returned to each parents.

Cancelling a parental responsibility agreement

An application can be made for the agreement to be cancelled but must be done in court and reasons for cancellation must be put forward in person. Alternatively an application can be made on behalf of the child(ren) named in the agreement provided there are suitable grounds for suspecting that neglect or abuse is taking place.

Otherwise the agreement will remain effective until the child(ren) reach the age of eighteen.