27th Nov 2019

It’s Cohabitation Awareness Week!

This week (25th – 29th November 2019) marks Resolution’s Cohabitation Awareness Week. The focus of the campaign? To highlight the need for legal reform to provide at least basic rights for cohabiting couples who separate. It comes as no surprise that many couples who cohabit do not realise that they will be treated very differently in law on relationship breakdown compared to those couples who are married or in a civil partnership. The financial effect of this can be devastating and sadly, many realise only too late.

If you and your partner are living together, it is important to know where you stand financially both during the relationship and on relationship breakdown. It is equally important to appreciate that there are things you can do to help mitigate any uncertainty in the form of a Cohabitation Agreement and a Declaration of Trust.

In this blog we answer some key questions about cohabitation.

Does the concept of a ‘common law marriage’ exist?

No. Contrary to popular belief, ‘common law marriage’ is not something which exists in England and Wales. A couple will not simply ‘acquire’ rights as a result of being in a relationship, no matter the length of time. This is a key distinction between cohabitation and marriage.

Will I automatically be protected financially should the relationship come to an end?

No. Couples who cohabit do not have the same rights as married couples when the relationship breaks down. If you are not married or in a civil partnership, there is no responsibility for one party to the relationship to financially support the other should the relationship come to an end. This is the case even if the parties have children together and one parent has given up their career to care for the children (although financial claims can still be made on behalf of the children). Broadly speaking, the assets owned by the parties to a marriage are available for division on divorce regardless of ownership (with some exceptions such as inherited assets unless they are required to meet financial needs of the parties). On divorce, married couples can make claims for maintenance, property rights and a share of a pension. These claims are not available for unmarried partners. As a starting point therefore, each party will leave the relationship with those assets which are in their respective sole name and those assets will be free of any claims by the other.

At best, a claim for a beneficial interest in property may be the only option available but these types of claims are notoriously difficult to establish. To claim a share of a property held in one party’s sole name, the other party must demonstrate a common intention that they should have a beneficial interest in the property and that they have acted to their detriment.

Will I have to move out of our home if my partner and I separate?

Possibly.  This will depend on (i) the type of accommodation and (ii) whether your name is on any legal documentation.

If you are living in rented accommodation and the tenancy agreement is in joint names, you both have a right to remain in the property. If the tenancy agreement is in one party’s name, you will have to leave if your partner asks you to do so. In some cases, a court can order that a tenancy be transferred into one party’s name.

If you and your partner own the property together, then you both have equal rights to stay in the property. If you are living in a property owned by your partner, you have no automatic legal right to remain in the property unless you obtain an Occupation Order from the court (where appropriate) or in circumstances where you are able to demonstrate that you have a beneficial interest in the property. Such an application would be made under the Trusts of Land and Appointment of Trustees Act 1996. This is a particularly complex area of the law and specialist advice should be obtained.

Will I be provided for financially should my partner pass away?

Not necessarily. It is important to know that, should your partner pass away, you will have no automatic right to any inheritance. The rules of intestacy will not assist a cohabitant in the way they benefit a spouse. Cohabiting couples should regularly review their wills should they wish their partners to be provided for on death. You should also think about putting both parties’ names on any title deeds to the property in which you live so as to avoid one party potentially being left without a home on the death of the other. This will of course be dependent on the circumstances of each relationship.

Can I avoid uncertainty if my relationship comes to an end?

Yes. There are options which enable you to formally regulate your financial affairs whilst you are living together such as entering into a Cohabitation Agreement or explicitly stating your interests in and contributions to any property in a Declaration of Trust but these will not be in place unless documentation is drawn up in the correct form.

It is vital for cohabiting couples to protect themselves from the financial consequences of relationship breakdown. Entering into a Cohabitation Agreement or a Declaration of Trust does offer up some protection and security should your relationship come to an end and it helps to mitigate some of the uncertainty which can arise as a result. Please see our Living Together page for further details.

If you would like to discuss any of the above, our team of specialists can take you through all of your options. Please contact us on 020 7420 5000 or hello@flip.co.uk

For more information, please also see Resolution’s Campaign page.