These days, it’s common for couples to decide to live together before marriage or choose to cohabit instead of getting wed at all. However, unmarried couples who live together have different legal rights when compared to married couples. As such, it’s crucial to understand the legal implications of cohabiting, particularly in the event of a dispute or relationship breakdown.
No one likes to think about what might happen if or when a previously committed relationship comes to an end, but it’s essential to know just what might happen to your assets, home, and children should you ultimately go your separate ways without having tied the knot.
Cohabitation and the Law
Despite popular misconceptions, it is important to clarify that unmarried couples cannot be considered “common law married” under UK law. Even though many still believe that you become “common law” spouses after living together for a certain number of years, the concept has not been legal since 1753.
Therefore, those who are cohabiting, regardless of the length of their commitment, will have no legal responsibilities towards each other in the event of a separation.
The UK’s current legal position on cohabitation is often criticised for being outdated penalising those couples who make the choice not to marry. Currently, these laws will disproportionately affect women, particularly those who have given up work to raise the family’s children and are left with little financial security. Ethnic minority women in religious communities are also impacted due to religious-only marriages not meeting legal formalities.
In August 2022, the House of Commons Women and Equalities Committee published a report calling for widespread reform to adapt to modern societal changes in the family structure.
Recommendations included launching a public campaign to debunk the concept of “common law marriage”, whilst also suggesting an opt-out cohabitation scheme to provide basic legal rights on relationship breakdown, with the option to opt-out if desired.
To date, the Government has rejected most of these proposals, however, in a statement made by Emily Thornberry MP, the Shadow Attorney General, on October 10th 2023, the Labour party pledged to make reforms to the laws pertaining to cohabiting couples should they get into power at the next election.
For now, though, disputes over the equitable division of funds, assets, and child custody will continue to arise more frequently, when an unmarried, co-habiting couple part ways.
Finance
In long-term relationships, whether married or not, couples often have a joint bank account to handle shared expenses (eg, rent, food, and bills). This decision varies based on personal preference, as some prefer to keep their finances separate. However, it’s important to note that opening a joint account can have an impact on your credit score if your partner has poor credit or fails to make payments from the joint account.
Also, if you break up, there’s nothing to stop either partner from withdrawing all the funds out of the joint account – and very little you can to recover that money, even if you can prove your contributions. As such, it’s wise to seek legal counsel as soon as possible upon separation to avoid any one party benefitting from unjust advantages.
When a marriage dissolves, generally speaking, all assets will be divided equally, but the same automatic claim to each other’s assets or property does not currently exist for unmarried couples. Here, each party will retain their own money and property and any joint assets will be split equally. Any disputes over asset ownership are usually assessed individually and divided according to applicable laws.
When it comes to inheritance, protecting this payment can be challenging if it was invested into paying off a joint mortgage whilst co-habiting. If you later separate, unlike those in a legally recognised union, you may not have the same negotiating power or legal rights to recoup that investment. In such cases, a ‘source of funds’ argument can be used to safeguard the payment from being divided equally between both homeowners.
Furthermore, it should be understood that married parents cannot rely on any potential spousal support if the relationship breaks down, as they will not be eligible. However, if there are children involved, child support may be payable. In England and Wales (but not in Scotland) parents have a financial responsibility to their children through the government’s Child Maintenance Service.
Property
Disputes over property that arise during the separation of co-habitating partners, can become quite complex.
In cases where the property is owned by a single individual, this complexity escalates. In the event that a relationship ends, the other partner may still be able to claim an interest in a residence owned by the first due to the creation of a “trust.”
In this kind of trust, there is an implicit agreement between two or more cohabitees regarding a property, usually based on their financial contributions and behaviour. A “trust” will exist, for instance, if you have made modifications or made monetary contributions to a property you share with your partner even though you are not the official owner.
However, the party without documented ownership will be responsible for proving there was a ‘trust’ in place.
This can be done by demonstrating regular mortgage payments or providing evidence of your contribution to the initial deposit. Another option is showing that there was a verbal or written agreement with the legal owner regarding your share in the property’s equity in the event of a relationship breakdown, although this can be challenging without written documentation.
Even if the property is jointly owned, disputes can still arise when one person refuses to vacate or sell it. This can create immense difficulties and make individuals feel trapped in their current situation.
In cases where an agreement cannot be reached through negotiation between both parties, it may be necessary to resort to legal action. However, it’s important to note that legal disputes of this nature can be intricate, and gathering the necessary evidence to support your claim for a financial interest in the property can be challenging.
What happens should one member of a co-habiting unmarried couple die?
Sadly, the end of a relationship is not always through choice, and unmarried cohabiting couples should be careful to plan for what will happen to their assets in the event of their death.
Unmarried cohabiting couples have no automatic right of inheritance if their partner dies without a Will. In such cases, legal rules known as ‘intestacy rules’ determine who benefits from the deceased’s estate, and unmarried partners do not benefit under intestacy.
However, surviving unmarried partners can make a claim through the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘1975 Act’). This allows them to seek provision from their deceased partner’s estate if their partner died without a Will or if their partner’s Will did not adequately provide for them. The claim must be made within 6 months of the Grant of Probate or letters of Administration being issued, although exceptions may apply in limited circumstances.
Under the 1975 Act, unmarried partners are entitled to reasonable financial provision as necessary for their maintenance, considering factors such as their financial resources and needs, the financial resources and needs of other applicants, the financial resources and needs of any beneficiary, the deceased’s estate value, any disability, and any other relevant matters.
There are, however, several other measures that all unmarried co-habiting couples should consider to better protect their surviving partner upon death. These include:
- Pensions: You might want to specify where you want your pension benefits to go in the case of your death because your present pension might not currently pay out to your unmarried partner upon your death.
- Life insurance: If one of the cohabitants dies, the cohabitant’s partner would not be eligible for the Bereavement Support Payment that married couples can get. If your cohabiting partner passes away, life insurance can provide you with the security you need.
Co-habitation agreements
One solution for effectively protecting your financial position when deciding to co-habit with a partner to whom you are not married (or in a civil partnership), is a co-habitation agreement.
A cohabitation agreement is a legal document that records rights and responsibilities of a couple who live together, both during and at the end of a relationship, specifically regarding property and financial matters.
These agreements can also address child support, bank accounts, debts, household bills, vehicles, and pet care.
While it may seem pessimistic, a cohabitation agreement offers certainty and peace of mind for both parties in a similar manner to a prenuptial agreement at the onset of a marriage.
The advantages include reducing disputes over ownership, providing financial flexibility, and protecting the individual assets of both parties. Whilst cohabitation agreements can be created at any stage of a relationship, they should be periodically reviewed and updated as needed, certainly in line with any major life events.
At Buckles, our friendly, family law specialists provide expert advice to unmarried couples on various issues. Whether you want to protect your interests as an unmarried partner, seek advice after a relationship breakdown, or need assistance resolving a dispute, we have the necessary skills and experience.
