Co-habitation - the law and advice

To celebrate the launch of Kidwells Law Solicitors’ new Family Law department, our article this week is about the legal rights of those co-habiting. 

Co-habitation – The law and advice

In excess of 4 million people in England and Wales are choosing to live together without getting married.[1]

The ‘Old Wives Tale’ that after a certain length of time you become common law husband and wife with the same rights as married couples is just that, an old wives tale, a myth.  As far as the law is concerned, common law marriage hasn’t existed in England and Wales since the mid 16^th century!

It is a fact that couples who live together have very few ‘rights’ compared with married couples or civil partners. Many people only find this out when it’s too late to do anything about it such as when the relationship breaks down or one partner dies. This often results in a legal battle which is traumatic and expensive.

The Law Commission have been looking into whether the law should be changed to give greater financial protection to couples who have been living together, and their children, in the event of separation or the death of one partner but the outcome has not yet been finalised.  Proposals have been made that unmarried couples who live together for two years or more would automatically be entitled to half their partner’s estate if they die.

Additionally it is seen as The Government recognises that there is a need to address the issue for the benefit of cohabitees, they do not appear keen to resolve the problem. On two occasions, and following lengthy consultations on each, the Law Commission's plans for reform have been shelved and we now await the results from research into the Family Law (Scotland) Act 2006 which give certain rights to cohabitants on the breakdown of a relationship under Scottish law.

What happens if you split up now:

Your ex does not have to pay you any maintenance for your own benefit…… even if you have given up work to look after the children or your home (although they will still have to pay child support for their children).

If you rent your home…… and the tenancy is in your ex’s name only, you will have no automatic right to stay if your ex asks you to leave or walks out.

If your ex owns the home…… and there is no other agreement or understanding in place, you will have no automatic right to stay if your ex asks you to leave.

If there is no other agreement in place…… your ex can walk away with all the savings and possessions he/she built up out of his/her own money. Where you bought the possessions together but each contributed different amounts to the price, you will own it in the shares in which you contributed.

If you are the father of a child…… and haven’t jointly registered yourself with the mother as the child’s father on the birth certificate since 1 December 2003, you will not automatically have parental responsibility.

What happens if your partner dies:

If they have not made a will… … you will not automatically inherit anything from them, including the family home if it’s in their name or if you own it jointly as ‘tenants in common’

You will not get any state bereavement benefit…… or a state pension based on a percentage of your ex’s national insurance contributions, even if you had given up work to look after the children and depended on your partner’s income.

If they have made a will…… and what you inherit is worth more than £325,000 (for 2009-2011), you will have to pay inheritance tax.

Advice:

If you are renting a new place together, think about putting both names on the tenancy. It is probably not worth ending an existing tenancy as this may mean you lose other rights, but bear it in mind when you next sign a new tenancy.

If you are buying a new place together, or moving into a home your partner already owns, think carefully about how you want to own it. Choosing between owning it in one person’s name, as ‘joint tenants’, or as ‘tenants in common’ will make a massive difference to your rights.  

Make a will – even if you do not have very much to leave at the moment. Without one all your property and assets will automatically pass to your closest blood relations – which may not be what you want.

If you are an unmarried father, make sure you get parental responsibility for your children.

Check your pension scheme – some do not pay survivor’s benefits to unmarried partners. Think about how you can build up separate pensions for each of you.

Make a Living Together agreement. If you split up, it can help you do it as amicably and as fairly as possible.

For further no-obligation information or a chat on any of the above cohabitation issues please speak to our expert, Jo Thurlow in total confidence at jt@kidwellssolicitors.co.uk or to make a will, Teresa Ingarfield ti@kidwellssolicitors.co.uk or call us 01432 278 179. 

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[1] Information provided by www.direct.gov.uk.