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Pitfalls of cohabiting

Around 50% of people who read this article are not married. In recent years it has become more common for couples to cohabit rather than get married and between 1996 and 2017 the number of opposite sex cohabiting couple families more than doubled from around 1.5 million to 3.2 million[1].

Click to view Cohabiting Infographic

In reality there is no such thing as a "common law marriage" that gives cohabitants the same rights as married couples or those in a civil partnership. The financial orders available under the Matrimonial Causes Act 1973 do not apply and therefore a person who splits up from their partner does not acquire rights to maintenance, pensions or lump sums regardless of the amount of time they have lived with one another. Furthermore they have no matrimonial claims to the ownership of each other's property once the relationship has broken down.

Upon separation the Court has no power to override the strict legal ownership of property and therefore the Courts are not capable of dividing ownership as they may do during a divorce or the breakdown of a civil relationship. It is therefore important that cohabiting couples think about what would happen in the event they decided to separate, in terms of both ownership and occupation. Whilst separation is not a topic most couples choose to talk about, in the hope it will never happen, it is important to think about it before it happens as there are certain things that can be done to protect both parties (and any children of the relationship) to provide some protection to the parties in the event that the relationship breaks down such as

Entering into a Deed of Trust - This is a formal legal document which allow couples to specify who owns what share of a property (for example 50:50, 40:60, 25:75). A Deed of Trust (also sometimes known as a Declaration of Trust) is often useful for when one party contributes more towards the purchase price of the property, or would like to ensure that their share of the property passes under their will and does not automatically revert to the surviving joint owner upon their death. It is not uncommon that parties do not consider when buying a property what would happen if the relationship breaks down and parties can often spend thousands of pounds in a dispute about the value of their interest in a property which could have been avoided, if a Deed of Trust had been entered into.

Entering into a Cohabitation Agreement - A cohabiting couple can enter into an agreement known as a Cohabitation Agreement which sets out arrangements that will apply whilst they are living together as well as establishing the rights of the parties upon the breakdown of a relationship. Whilst the Court has the power to disregard cohabitation agreements they are likely to be persuasive in the event of a breakdown of a relationship and will be taken into consideration.

Ensuring that you both have valid wills - Cohabiting couples should consider what will happen to their assets if they predecease their partner and what provision they would like to be made for their partner (if any). This might be particularly relevant if one party supports the other financially, or one party lives in the property of the other. The vast majority of people die intestate (i.e. without a will) and fewer than half (41%) of all adults say that they currently have a will[2]. Therefore, (save for certain assets that fall outside a will / intestacy such as a pension, or a property held under a joint tenancy), if one party to the relationship dies intestate their assets will not automatically pass to the surviving party but will be distributed in accordance with the intestacy rules. The intestacy rules do not provide for unmarried cohabiting partners. This will mean that the assets will pass to a family member or members rather than to any partner. It is therefore paramount that cohabiting couples consider whether they would like any provision to be made for their partner when they die so their partner is not left in a position where they are left homeless if they don’t jointly own the family home.

Considering the children of the relationship - Children are often born into relationships whereby the parents are not married or in civil relationships. In the event the relationship between the parents breakdown the ways of applying for maintenance and property orders for the benefit of the children are much more limited. When the parents of a child are not married at the time of the child's birth the mother will have sole parental responsibility of the child unless the father is named on the Birth Certificate whereupon he will also have parental responsibility. Parental responsibility is important as it gives the parent the right to make important decisions in relation to their children such as medical and education decisions.  Cohabiting couples with children should therefore consider entering into a Parental Responsibility Agreement if one of the parties is not recorded on the Birth Certificate. Further, there is no ability to claim spousal maintenance and the only maintenance provision that is available is for the maintenance or children.

It is important that the documents detailed within this article are drafted correctly and therefore you should seek specialist advice.

[1] House of Commons Library, Briefing Paper "common law marriage and cohabitation", 13 June 2018

[2] https://yougov.co.uk/news/2014/01/20/wills-and-probate/

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