Cohabitation is an arrangement where two people are not married but live together. They are often involved in a romantic intimate relationship on a long-term or permanent basis.
You may hear people refer to cohabitees as common-law partners however, contrary to popular belief, there is no such thing as a ‘common-law’ marriage in England and Wales. Many people are mistaken in thinking that if their relationship were to end, they would have legal protection like a married couple, but this is not the case.
Cohabitation of unmarried couples does not bring the same rights on separation as a divorce/dissolution might.
If you are moving in together, it is important to understand how your legal position will be affected and how you can ensure that you are both protected, should the relationship come to an end.
Generally, you have fewer rights if you’re cohabiting than if you’re married. There are specific laws which deal with the breakdown of a marriage (divorce law) however, there are no equivalent laws for cohabitees in England and Wales. That said, you can formalise aspects of your status with a partner by drawing up a legal agreement called a ‘cohabitation contract’. The cohabitation contract outlines the rights and obligations of each partner towards each other, but you should also make a legal agreement about how you share your property which is called a ‘declaration of trust’.
If making a ‘cohabitation agreement’ or ‘declaration of trust’, you should get help from a family law solicitor.
Entering into a cohabitation agreement can help to avoid the costly and time-consuming process of court proceedings should you and your partner separate in the future.
It is for the couple to decide what they want the agreement to cover, but it can include:
– How rent, mortgage and household bills are paid;
– What happens to joint bank accounts and pensions;
– Property and assets that were owned before, or bought whilst living together;
– Arrangements for children;
– Arrangements for pets;
– Next of kin rights
As with a Will, it is good practice to review your cohabitation agreement every five years, or whenever there are any major changes in circumstances, like children.
Before entering into a cohabitation agreement, it is highly recommended that each party seeks independent legal advice.
Cohabitation agreements can be similar to contracts. You and your partner will, in effect, create a contract with each other and the court will certainly consider the terms of it if they need to. However, they are not ‘watertight’ and it will depend on how the agreement was made. For example, did each party receive legal advice and did they provide full and frank information to each other before entering into the cohabitation agreement.
All of these elements will need to be considered. So, although it is much better to have an agreement than nothing at all, you will need to ensure that it is done correctly. Therefore, if you are considering entering into a cohabitation agreement, you should seek legal advice.
This will of course depend on the complexity of what is required, but you should consider a figure anywhere between £500 and £2,000.
Unlike in a divorce, an individual is only liable for debts which are in their own name, they are not liable for any debts which are just in their partner’s name.
All couples, whether married or living together, are treated in the same way when they are assessed for entitlement to most Welfare Benefits, Working Tax Credit or Child Tax Credit. If they are claiming means-tested benefits, they will usually be expected to claim as a couple, and the income, savings and financial needs of both partners are taken into account.
If a couple is cohabiting and one party owns the family home, only the person who owns the house is entitled to live there. This can leave the non-owning party in a difficult position if the relationship breaks down.
The other party may, however, have some rights in certain circumstances, for example a portion of money if the house is sold if the non-owning party contributed to the mortgage or the household bills. It is important that legal advice is received if you are living in the former family home to establish the extent of your rights.
If your partner becomes ill, you have no automatic right to know about their condition or plan their care unless you have either a Power of Attorney or there are other formal agreements (such as relevant clauses in a cohabitation contract) beforehand.
If your partner dies, you may not have the right to make arrangements.
For cohabiting couples, if a partner dies without leaving a Will, the surviving partner shall not automatically inherit anything unless the couple jointly own their property. As a result, unmarried couples need to make Wills if they wish to ensure that the other partner inherits. It is also worth noting that if you do inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax as married couples are.