Cohabiting is very different to marriage when it comes to legal rights and responsibilities. We take a look at some of the most common cohabitation misconceptions.
Office for National Statistics figures show that there has been a rise in the number of cohabiting couples over recent years. In 2011, the proportion of couples who were cohabiting rather than being married or in a civil partnership was 20.6%. By 2021, it had risen to 24.3%. A House of Commons report on cohabitation estimated the total number of cohabiting couples to be around 3.6 million in 2021.
If you are living with someone but are not married or in a civil partnership, it is important to understand your rights.
1. When you live with someone, you’re their common law spouse
This is a longstanding myth. In fact, there is no such thing as common law marriage and if you live with someone, you do not have the rights and protections that you might as a spouse.
2. If you are cohabiting, your partner will inherit if you die
No matter how long you have lived with someone, if one of you were to die, the other would not be entitled to inherit anything unless there is a Will in place leaving them a bequest.
The only exception is if you own property together as joint tenants. If you do, then the survivor would automatically own the property should one party die. This is because property owned as joint tenants does not form part of someone’s estate and so does not pass under the terms of their Will or the Rules of Intestacy.
If you own property together as tenants in common, so that each of you owns a specified percentage, the deceased party’s share would pass under the terms of their Will. If they do not have a Will, it passes in accordance with the Rules of Intestacy. The rules do not make any provision for cohabiting partners.
Your only course of action in this case would be to make a legal claim against the estate for reasonable financial provision. This might be successful if the deceased had been supporting you financially, but it is not guaranteed and it is likely to be an expensive and time-consuming option.
You are also unlikely to receive anything from their pension, unless they have nominated you as the beneficiary.
3. If you separate, you are entitled to a share of the home you live in
Unless you are named on the title deeds, you will not usually be entitled to any share in the home that you lived in with your partner. This means that if you separate, you would have to leave with nothing.
If you have contributed towards the mortgage or major alterations on the understanding that you would have a share in the property it may be possible to make a legal claim under the Trusts of Land and Appointment of Trustees Act 1996, known as a TOLATA claim, but this is far from straightforward and can be difficult to prove.
You are strongly advised to have the property transferred into your joint names if you are making a financial contribution or if you are paying other expenses so that your partner can pay the mortgage.
4. If you separate, assets will be shared, including pensions
You will not be entitled to claim anything belonging to your partner in the event that you separate. This includes future pension provision. Each of you will walk away with the assets that are in your name.
5. If you have children, your partner is required to support you if you separate
If you have children with your partner and you separate, the person who is not living with the children will usually be required to pay child maintenance to the person with their day-to-day care. However, there is no provision for maintenance to be paid to you, if you are the one caring for them, as there is no legal obligation for cohabiting partners to support each other.
Protecting your rights as a cohabitee
Fortunately, there are steps you and your partner can take to plan for every eventuality and protect yourselves in the way that you want.
Putting a Will in place means that you can leave your estate to those you want to benefit from it.
Checking that you own your property in a way that reflects each person’s input can ensure that whatever happens, you both have a share in it.
Having a cohabitation agreement drawn up can set out the way in which you both want crucial issues to be dealt with in the future, such as assets, liabilities and arrangements for children.
If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at [email protected]