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Cohabitation Partners & Rights: What to have in your Cohabitation Agreement

Cohabitation partners dealing with separation and cohabitation agreements can face some difficult questions. Contrary to common belief, there is no such thing as a ‘common law’ marriage or common-law spouses in England and Wales.

For those considering living with their partner as a cohabitation partners, it is important to be aware of the potential that this ‘next step’ in your relationship has, to put you in a legally vulnerable situation and the affect of a cohabitation agreement. In England and Wales, there is not yet any specific law for dealing with separating cohabiting partners, with decisions in this area usually being made by applying previous case law and various pieces of civil legislation. Indeed, there are a number of different and often very complex areas of law, that can sometimes come into play when dealing with disputes between cohabitation partners who have decided to go their separate ways.

For cohabiting partners, it is essential to fully understand the legal implications of moving in with your partner. It’s therefore sensible to speak to an experienced solicitor, so that they can advise you on your own individual situation.

Here are some of the most common disputes cohabitation partners can face:

 

Property: Moving in with your cohabiting partner

Many disputes between cohabitation partners  who have decided to end their relationship are regarding a property.

In some instances, couples who jointly own a property disagree about how they are going to split the money when a property is sold. Other times, if one partner owns the property, the other may claim that they are due a share of the property because, for example, they have contributed towards the mortgage or have paid for some major works to be done on the house.

Indeed, there are various circumstances where it may be possible for a partner to establish a financial interest in a property, where they didn’t previously have a declared interest.  However, if you wanted to do this, you would need specialist legal advice as to your particular circumstances, as it could involve applying to a court under the Trusts of Land and Appointment of Trustees Act 1996.

It’s also worth noting that cohabitation partners do not have the same legal rights as married couples to remain in a property after splitting up.

Additionally, if you are buying a house together, it’s important to decide whether you want to be tenants in common or joint tenants.

If you are joint tenants, you and your partner would both own the whole property, so if you die, the property would automatically go to your partner. Tenants in common own a specified share of the property, so they can choose to leave their part of the property to someone other than their partner in a will.

It’s important to seek legal advice so that you can ensure that you fully understand the implications of these decisions.

cohabitation partners

 

Your possessions – who owns what? 

If a cohabitation partners breaks up, discussions of who owns what can become very heated. This is quite a complex area of law but in essence, if you bought an item, you would probably be seen to own it. However, this isn’t always the case.

If you partner has given you a gift, this should belong to you. Again, it’s often not as ‘cut and dry’ as this, as it can sometimes be difficult to prove that the item was indeed given to you as a present.

If you bought something from your joint account, both you and your partner would probably own the item.

Again, this is a relatively complex area of law and it is important to get legal advice about your particular circumstances.

 

Pensions of Cohabitation Partners

The law regarding what will happen to the pensions of cohabitation partners  if one of them dies, is much more complicated than that regarding married couples.

Different types of pensions have different rules, so it is a good idea to speak with an experienced solicitor to find out what the situation would be in your particular circumstances.

 

Having children when you are not married

Mothers automatically have parental responsibility when the child is born, if the parents are not married. If the father is jointly registered on the birth certificate, they also have parental responsibility for the child. This has been the case since 1 December 2003.

For cohabiting fathers who are not jointly registered on the birth certificate, it is important to speak to a solicitor about the implications of this, for now and for the future, especially if you and your partner decide to break up. Parental responsibility gives you the right to have a say in things such as your child’s education, religion and health. You may be able to get parental responsibility for your child through a number of different methods. Speak to your solicitor to find out more about this.

When it comes to financially supporting the child, both parents are responsible, whether or not the father is named on the birth certificate. If you and your partner have a child together and decide to break up, It’s important to seek advice from your solicitor as soon as possible about any claims with regards to financial support for the child.

 

What if your partner dies?

Married people automatically inherit if their spouse dies and there is not a will.

It is a very different situation for cohabitation partners. If you die without having made a will, your partner will not automatically be entitled to a share of your assets.

This means that it is essential to write a will, if you want to ensure that your partner can inherit should you die.

Additionally, cohabitation partners are not exempt from paying inheritance tax in the same way that married couples are. For more information about this, take a look at the government website.

When it comes to other types of tax, married couples do have some other benefits that cohabitation partners do not.

Speak to a solicitor about your particular circumstances to find out more.

 

How are debts treated? 

You are not liable for debts which are only in your partner’s name, unless you have acted as a guarantor for the debt.

However, you may be liable for any debts which are in both your and your partner’s name, as well as those debts for which you are joint and severally liable.

 

Ending your relationship as Cohabitation Partners

While cohabitation partners could choose to separate without a court becoming involved, married couples will have to obtain a divorce through the courts if they want to formally end their relationship.

 

Cohabitation meaning

The meaning of cohabitation is more important than ever before. Cohabiting couples were the fastest growing family type between 1996 and 2016, with numbers more than doubling from 1.5 million families to 3.3 million, in only 20 years, according to the latest statistical bulletin on UK families and households from the Office for National Statistics.

Although there were still more civil partner or married couple families, it’s clear from these figures that the popularity of the cohabiting couple family model has been on the increase. If this trend continues, one day we could even see cohabiting overtaking the more ‘traditional’ family model.  Therefore, it is important to understand the meaning of cohabitation.

 

There is no such thing as a ‘common law marriage’ 

Before we under the meaning of cohabitation, we need to deal with common law marriage.  Research carried out by One Plus One in 2013, showed that 47% of people believed that a cohabiting couple had similar rights to couples who were married. This is not the case. In England and Wales, a ‘common law marriage’ simply doesn’t exist.

In fact, there is no specific statute that governs how your finances should be dealt with if your relationship with your partner ends and you’re not married or in a civil partnership. This is the same no matter how long you’ve lived together.

Laws to do with property and trusts can sometimes come into play when cohabiting couples separate but these are often highly complex, time-consuming and can be far from clear cut.

 

Cohabitation agreements are possible 

If you want to live with your partner as a cohabiting couple, you could opt to sign a cohabitation agreement, which can set out things such as how your property and any assets should be split if your relationship comes to an end in the future. If you want to enter into a cohabitation agreement with your partner, it’s important that you both get independent legal advice.

Just like a prenuptial agreement, you and your partner would also need to fully disclose your finances to each other. Failure to do this could result in your cohabitation agreement being set aside.

You should also bear in mind that you’ll need to keep your cohabitation agreement up to date, to ensure that your circumstances are accurately reflected in it.

Cohabitation agreements may not be right for everyone, so it’s important to seek advice from a solicitor who is experienced in this area of law before deciding whether or not to go ahead.

 

Time for change? 

The fact is, that until some kind of legislation is brought in, to set out the rights of cohabiting couples, cohabitees don’t have many rights in England and Wales.

Due to the increase in the number of couples opting to simply live together, rather than marry, many people have been calling for a change in the law when it comes to cohabiting couples’ legal rights.

How long this will take and indeed whether a change will ever materialise, is still hotly debated. With Brexit in the not-too-distant future and so many issues to sort through before the 2019 deadline, it could be a while before cohabitation partners are given the rights that many think are long overdue.

 

Cohabitation agreements

Cohabitation partners who want to live together could choose to sign a cohabitation agreement. This agreement is a type of contract which could include issues such as how your property should be split should you decide to break up or who owns which assets.

It could also include things such as how rent or mortgage payments will be split between you and your partner when you move in together.

When clients come to us for advice following the breakdown of the relationship with their unmarried partner with whom they are currently living, they are often surprised to discover that ‘common-law marriage’ does not exist in England and Wales and that they do not benefit from the legal protection that they thought this may have offered them.

Earlier this year, a case hit the headlines which shows just how important it is for unmarried couples who live together to consider entering into a cohabitation agreement.

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The case: Dobson vs Griffey

Jacqueline Dobson and Matthew Griffey lived together but never married. In 2007, Mr Griffey bought a rural property in Devon for £660,000, which he ultimately sold in 2017 for £967,500. Ms Dobson lived in the property together with Mr Griffey, until their relationship broke down and she moved out in 2012.

Ms Dobson claimed that there had been an understanding (following a conversation over lunch at a local pub) that the property would be a “home for life” and that Mr Griffey would split the property with her.

She claimed that after their relationship came to an end in 2011, Mr Griffey reneged on what they had agreed.

Ms Dobson sought half of the profits that arose due to the sale of the farm in 2017.

The court agreed that Ms Dobson “did a great deal of heavy and laborious work” and this work amounted to “a significant contribution to the renovations”.

Ms Dobson did not contribute to the purchase price of the property or to the mortgage. Mr Griffey paid for the renovations.

The court dismissed Ms Dobson’s claim.

At the end of the judgement, the judge said that this case was not about “the rights and wrongs of the parties’ relationship”, rather it was about their property rights.

 

What are cohabitation agreements?

Mr Griffey and Ms Dobson had no cohabitation agreement. It was a conversation over lunch at a local pub during which Ms Dobson alleges that Mr Griffey said he would split the property with her. This was not written down at the time.

As the couple were not married, the family law which couples who are getting divorced can rely on to protect their interests, did not apply. Instead, property law had to be relied upon in this instance.

In the judgement, the judge accepted that Ms Dobson had done “a great deal of heavy and laborious work” on the property. However, the court said that “her labour and commitment were understandable in the context of their relationship and their intended long-term future together with children”. A commercial agreement was not supported by any evidence and it was Mr Griffey alone who had bought the property and paid the mortgage.

This case emphasises the importance of cohabitation agreements. These agreements enable unmarried couples to set out exactly what they would like to happen should their relationship ever break down in the future.

For those who wish to enter into a cohabitation agreement, obtaining independent legal advice beforehand is essential.

However, it is worth noting that if you and your partner do decide to break up and want to ‘enforce’ the agreement, the courts may choose not to enforce all clauses in your agreement. Speak to a solicitor to find out more.

It’s important that both you and your partner obtain independent legal advice before entering into a cohabitation agreement.

You and your partner would also need to fully disclose your finances to each other. If you fail to do this, it could result in your cohabitation agreement being set aside by a court.

Although signing a cohabitation agreement does not sound like a particularly romantic proposal for a couple who are just about to move in together, it could help to provide clarity and reduce stress on the legal side of things, should you ever decide to go your separate ways in the future. It could also help to make it clear how you will run the financial side of things during your relationship, thereby potentially helping to reduce the likelihood of arguments about this side of things.

You should also bear in mind that your cohabitation agreement will probably need to be revised on a regular basis, to ensure that your circumstances are accurately reflected in it.

Cohabitation agreements may not be the right thing for all couples. It is a good idea speak with a solicitor who is experienced in this area of law before deciding whether or not you would like to enter into one.

You could also consider making separate agreements on specific matters with your partner, regarding, for example, how the house that you both own would be shared should you decide to end your relationship. Again, it is important to speak to a solicitor if you want to do this.

 

Does it make more legal sense to get married? 

There is no doubt that living together as an unmarried couple can sometimes put couples in a more vulnerable position from a legal point of view, than living together when you’re married.

The fact that ‘common law’ marriage simply does not exist in England and Wales, means that issues regarding disputes between unmarried couples who decide to break up, can end up in some highly complex areas of law. This, in turn, means that the outcomes can sometimes be quite uncertain.

However, getting a divorce can be expensive and time-consuming, especially if you are unable to negotiate an agreement about how your finances will be split and have to ask a court to decide for you.

By talking to a solicitor if you are considering moving in with your partner and taking a few simple precautions, you could go some way towards mitigating the legal risks that are currently involved in cohabiting with your partner in England and Wales. This could also help you to decide whether a cohabitation agreement would be right for you and your partner.

Additionally, if you want to ensure that your partner is provided for after you die, you should discuss this with a solicitor and consider drawing up a will to this effect.

If you or your partner dies and you are not married, what will happen to the deceased’s pension may also be much more complicated than if you were married.

As a father, if you are not married to your child’s mother and are not jointly registered on the birth certificate, this could mean that you may not have parental responsibility, which could have various implications for the future.

Ultimately, whether you and your partner choose to marry is a highly personal decision that only you two can make.

Speaking to an experienced solicitor about your particular circumstances as soon as possible, can help you to fully understand the legal implications of your situation.

 

Changes to the law? 

Cohabitation partner families were the fastest growing family type between 1996 and 2016, with numbers more than doubling from 1.5 million families to 3.3 million, in only 20 years, according to a bulletin on UK families and households from the Office for National Statistics.

Until the government passes legislation to deal with the rights of cohabitation partners, unmarried couples who choose to live together do not have that many rights in England and Wales and the rights that they do have are often complex and buried in case law and legislation that was not specifically meant for this purpose.

More and more couples are opting not to marry and to cohabit instead. Due to this, many people have been calling for a change in the law. The way couples are choosing to be together seems to be changing and many argue that the law needs to be revised to reflect this.

 

How to protect your assets – speak to a solicitor 

By speaking with an expert divorce solicitor and ensuring that you are aware of the legal issues that go hand in hand with being an unmarried couple, you are taking steps towards ensuring that you are informed of where you and your partner stand legally and the potential implications of choosing to move in together.

You may also want to discuss with your solicitor whether a cohabitation agreement could be right for you and your partner.

 

Cohabitation rights

For the large number of cohabitation partners across England and Wales who cohabit with their partner, it can come as a shock to discover that they do not have the same legal rights as married couples.  So, what are your cohabitation rights?

With some estimates suggesting that approximately one in six families throughout the UK now opt to live as cohabitation partners rather than to marry, many believe that a change in the law is now long overdue. A recent ruling by the Supreme Court, with regards to pension cohabitation rights in Northern Ireland, will impact upon the way public sector pension schemes are administered throughout the UK.

 

Cohabitation rights – What does the case law say?

In this case dealing with cohabitation rights, Ms Brewster and her partner, Mr. McMullan, were cohabitation partners for ten years before he died suddenly in December 2009, only a couple of days after they got engaged.

Ms Brewster sought to benefit from a survivor’s pension but was told that this would not be possible, as Mr. McMullan had not signed a form stating these wishes prior to his death.

If Ms Brewster had been married to Mr. McMullan, she would have received the pension and would have no need for this form.

In the Supreme Court, Ms Brewster argued that this was a breach of her human rights, as she was being discriminated against because of her marital status, as cohabitation partners.

The Supreme Court agreed with Ms Brewster and said that the requirement to fill out a form of this kind was not necessary and that the refusal to pay out in this situation was in fact unlawful.

Many UK public sector pension schemes contain the requirement for a ‘nomination form’ to be completed in order for the cohabitee to be awarded a survivor’s pension. This ruling means that all UK public sector pension schemes should now look again at each and every case in which someone had been refused a survivor’s pension, just because their partner had not filled out a form to nominate them.

Although this decision does have far reaching consequences for many public sector pension schemes, you should not assume that you will automatically be due a survivor’s pension, should your partner die if you live as cohabitation partners.

There are other rules that must be fulfilled in order to qualify for a survivor’s pension.

What this case does show, however, is a growing need to recognise the cohabitation rights of unmarried couples in the UK.

Society is changing and more people than ever before are choosing to as cohabitation partners, rather than to marry. Families in the 21st century look very different to how they looked even twenty years ago. In England and Wales, there is currently no such thing as a ‘common law marriage’. Many argue that this is unfair and that the Supreme Court ruling regarding Ms Brewster and Mr. McMullan does not go anywhere near far enough to rectify this.

Legally, there is a very big difference between the rights of married couples compared to cohabitation rights, couples who choose live as cohabitees.

If you are cohabiting with your partner, it is important to fully understand your legal cohabitation rights.

According to the Office of National Statistics, cohabitation couple families continued to be the fastest growing family type in the UK in 2015, with 3.2 million recorded out of 18.7 million families in the UK.

But what are your rights if you and your partner separate when you’ve been cohabitation? There is a lot of confusion over this area of law, with many people thinking they are in some kind of ‘common law marriage’, providing them with some form of protection if they ever split up or if one of them dies. However, in England and Wales, there is no such thing as a ‘common law marriage’ – in fact there hasn’t been for over 200 years – and there actually aren’t many legal provisions in the UK which protect cohabitation couples.

If a cohabitation couple breaks up, the law says that each person should keep any assets in their own name. This seems relatively simple but this rule can sometimes lead to highly complex cases that are not as cut and dry as what belongs to you or your partner.  Because there is not yet any specific law for dealing with cohabitation couples in England and Wales, there can be many different and highly complex areas of law that come into play. For example, there are some circumstances where it is possible to establish a financial interest in a property, where you didn’t previously have a declared interest, but this would involve applying to a court under the Trusts of Land and Appointment of Trustees Act 1996 and would need specialist legal advice.

It is possible to draw up a cohabitation agreement, even after you and your partner have moved in together. This way, you can state which assets belong to which person, potentially making things much simpler if you were ever to break up. This can also potentially avoid any application from your partner through the courts to gain a financial interest in any of your properties.

Unfortunately, until the government bring in some kind of legislation regarding cohabitation couples, there aren’t many rights for cohabitation couples in England and Wales. The Cohabitation Rights Bill, if it was passed by Parliament, would give cohabitation couples who either lived together for three years or lived together and had a child, more financial and inheritance rights. Anyone not wanting to have these rights would have to opt out. It had its first reading in June 2015 in the House of Lords.

The increasing popularity of cohabitation couples as a family choice in the UK should hopefully encourage the government to pass legislation that will provide some kind of protection for couples who choose this lifestyle. Leaving the law as it is and giving a large chunk of the population inadequate rights for their circumstances does not seem to be a fair option.

Financial settlements during the divorce process can run into millions of pounds and it can sometimes be years of to-ing and fro-ing before the final settlement is agreed.

But there are instances, even after everything has been finalised, where the original settlement terms can be varied.

If, for example, your ex-spouse decides that they would like to re-marry, the maintenance that you have been paying them as part of your divorce settlement will stop.

But what about if your ex-spouse starts to live with their new partner but chooses not to marry them? In a recent case in the Court of Appeal, reported by the Mirror, Sir James Munby ruled that Karen Hart could keep her £3.5 million divorce settlement, even though she was cohabitation with her partner, Tim Chubb. Her ex-husband argued that she should no longer get her settlement because she could now rely on Mr Chubb financially.

The court disagreed with Mr Hart and said that financially, the “presence of her new partner in her life did not diminish her needs”.

When deciding on a divorce settlement, the judge will look at each parties’ needs. What this case emphasises is that just because of a relationship with someone else, even when there are cohabitation partners involved, the terms of the financial settlement won’t necessarily be altered to reflect this.

Sir James Munby’s ruling seems to stem from the possibility that Karen Hart could have felt forced to marry her new partner in order to be financially stable, if the settlement was changed and didn’t actually meet her needs. This arguably wouldn’t be fair.

cohabitation

 

What does this mean for me?

If your ex-spouse is trying to reduce your divorce settlement because of a new partner – whether you live with the new partner or not – this ruling has important implications for you. In making this ruling, the Court of Appeal seems to have clarified that a new partner should not necessarily mean that your divorce settlement should be reduced. The settlement should still meet the needs of both parties and your ex-spouse should not be able to reduce your share of the family wealth just because you now have a new partner.

 

What if I want to re-marry?

Any maintenance that your ex-spouse agreed to pay you as part of the divorce settlement will be stopped if you decide to re-marry. If you’re worried about how your intention to re-marry could impact upon your divorce settlement then it’s worth speaking to a specialist solicitor.

Coming to a financial settlement during divorce can be a highly complex and time-consuming process. The Court of Appeal’s recent ruling seems to have clarified what a new partner can mean for the settlement and has re-enforced the importance of financial settlements during divorce meeting both parties’ needs.

Cohabitation partners after divorce is a big step in any relationship. According to the Office for National Statistics’ (ONS) latest statistical bulletin on Families and Households, cohabitation partner families are the fastest growing category of family, with numbers more than doubling in the twenty years from 1996 to 2017.

Indeed, this category of family, cohabitation partners, was reported as having overtaken ‘lone parent families’ in the UK.  With more and more people deciding to live together without or before marrying, it is vital to understand the legal implications of this type of relationship.

 

(1) A ‘common law marriage’ does NOT exist

Contrary to popular belief, in England and Wales, there is currently no such thing as a ‘common law marriage’.

The Cohabitation Rights Bill, which could provide some protection for cohabitation partners who decide to live together but not marry, had its first reading in the House of Lords in July 2017. As of yet, there is no date scheduled for the second reading.  This means that there is no specific statute currently available that defines how a cohabitation partner finances should be dealt with if their relationship comes to an end.

Trust and property laws can sometimes be used in these circumstances, but they are often extremely complex and the outcomes can be difficult to predict.

 

(2) Who owns the property where you live?

Many people do not realise that even if the property is solely owned by one partner, the other partner may have a right to claim an interest in the property they have been living in.  This could happen if the partner who does not own the property, made significant financial contributions to the home and there was an intention this person would benefit from having some of this property and they acted to their detriment because they relied on this intention.

As mentioned in point number one, this is a highly complex area of law and is far from clear cut.

 

(3) What if there are children involved?

Child maintenance, financial support from the child/children’s other parent for their living costs, can be arranged between the two parents or through the Child Maintenance Service, if the parents cannot agree.  For cohabitation partners with children, it may be possible to ask the courts to intervene upon the breakdown of the relationship if, for example, one parent is the primary carer but it is the other parent who is the sole owner of the property where the family live.

 

(4) Cohabitation agreements are possible

For some cohabitation partners looking to live together, it may be a good idea to enter into a cohabitation agreement. This is a type of contract where a couple can set out what they would like to happen if the relationship should break down in the future.

If you wish to enter into a cohabitation agreement, it is essential that both you and your partner receive independent legal advice.

For couples who wish to live together, it is important to understand the full legal implications of this decision. Those who are concerned can seek independent legal advice from a solicitor, to help decide whether a cohabitation agreement could be right for their circumstances.

 

How can our expert divorce solicitors help you?

Our expert divorce solicitors can help you with a range of legal issues, including:

Contact our expert divorce solicitors to understand the legal implications for cohabitation partners

For more information on the the legal implications for unmarried couples call our expert divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

Our expert divorce solicitors offer a nationwide service. We have client meeting office facilities available, in order to have face-to-face client meetings / conferences as and when required in:

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29th August 2017

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