Although the term “common law” husband or wife is still referred to when describing the relationship of a cohabiting couple, it confers no legal rights on either party. No matter how long you have lived together, or how merged your belongings and assets have become, you do not have the same legal protection as if you were married or in a civil partnership.
But getting married or entering a civil partnership doesn’t suit everyone, and it may be something you plan to do further into the relationship. This guide sets out the ways you can protect yourself whilst living together.
What are the risks of living together without protection?
There are two major changes in circumstances that can put you at risk if you are living together without any additional planning in place: separation and death.
If one of you dies, the other party may have no automatic right of inheritance or even remain able to live in the property. Should the relationship end, deciding what happens with the property and your belongings becomes very complicated. Particularly where affordability is an issue, the property is owned by one party, or one person contributes more financially than the other.
Living together and buying or renting a property
If a cohabiting couple separates, they do not have the same legal rights to property as a married couple. If one partner owns a house, the other partner may have a claim if they can show a “trust” was created. This may arise where one partner makes certain financial contributions, for example paying towards the mortgage or funding an extension. The level of interest varies depending on the extent of the contributions, but the property equity is no longer solely one person’s.
If you own the property jointly, there are several ways you can hold the property. You could be joint tenants where you own the whole property together, or tenants in common, where you each own a share in the property. This can be 50:50 or in some other agreed percentage.
As joint tenants, you have equal rights to the entire property. In addition, if one of you dies, the property automatically goes to the other owner, even if there is no will. As tenants in common, you can own different shares in the property and your share does not automatically go to the other owner if you die. Here, you can pass on your share of the property in your will in accordance with your wishes.
You can change the type of ownership at any time, such as changing joint tenant to tenants in common by serving a Notice of Severance on the other owner. You can register a restriction without the other owner’s consent by completing form SEV; you should also consider registering a “form A restriction” at the Land Registry if you cannot provide any of the evidence of severance options listed in form SEV.
If you rent a property and both names are on a tenancy agreement, you are equally responsible for the rent and any other tenancy conditions. If you split up and one of you wants to move out, you will need to talk to your landlord or lettings agency to change the tenancy agreement. In the case of joint tenants, one party cannot force the other to leave unless there is a court order. If only one name is on the tenancy agreement, then the other has no right to remain living in the property unless a court orders otherwise.
Living together and shared assets
Generally speaking, unmarried couples cannot claim ownership of each other’s property when they split up. This applies to larger investments such as a house, and smaller things, such as furniture. Gifts made during the relationship remain the property of the recipient.
Living together and children
An unmarried father only has parental responsibility for a child if they are named on the child’s birth certificate, whereas mothers have parental responsibility for their biological children from birth. Parental responsibility means having a say in decisions about the child, such as where they attend school or medical treatment.
If you are a father and cohabiting with your partner and wish to obtain parental responsibility, then you should be present in person at the registration of the child’s birth.
Each parent has a legal duty to provide child support for their children if they separate. This applies even if one party does not have parental responsibility.
What protections can I put in place?
If you want to put some protection in place ahead of moving in with your partner, then you should speak to a solicitor who can offer tailored advice to suit your circumstances. Some things you can do to protect yourself and your assets include:
- Cohabitation Agreement: This is a legal document setting out what happens if you separate from your partner. It protects the legal rights of unmarried couples by clearly outlining what will happen with finances, property, and any children you may have. This type of agreement provides clarity and reduces the likelihood of misunderstandings or litigation.
- Make a Will: Having a will clarifies what is to happen with your assets when you die. This can provide peace of mind that your estate is shared out according to your wishes. If you already have an existing will and are moving in with a new partner, you should think about revising the arrangements and get it updated if you want your partner to benefit from your estate when you die. If you have children together, you can also appoint legal guardians in your will.
- Take out life insurance: If you have purchased a property together, taking out life insurance should be at the top of your to do list. This ensures your partner receives help with the mortgage if you pass away. Life insurance can pay off all or part of your mortgage and can have additional benefits depending on your policy. If you want your partner to benefit from the policy, you should make sure they are a nominated beneficiary. However, you can nominate your children as beneficiaries if you prefer. Equally, if you separate, you may need to remove your partner as beneficiary. This is often missed when people separate and move on to a new relationship.
- Check your pensions: If you want your partner to benefit from your private pension, you should nominate them as your beneficiary with the pension provider. This ensures that the pension benefits are passed to them upon your death. People tend to take out multiple pensions throughout their lifetime as they change jobs, so there may be several to check and update. In the same way, if you want someone else to benefit, you should name them as beneficiaries instead. As with the life insurance above, if you separate and have named your partner as beneficiary, you should change this to reflect your current wishes.
Related Articles
Load More