In modern times, families can take on many different forms and couples can opt for marriage including same-sex marriage and civil partnerships as a way to formally recognise their relationship. However, it is increasingly common for couples to live together and to consider this a long-term arrangement, but with an unmarried status. This is known as cohabiting and suits many couples perfectly well, but it does come with some legal implications.
Here we will look at five issues a cohabiting couple should be aware of. These may dictate how the couple proceeds and what they choose to put in place to protect themselves, in the event that they eventually split up, or in the event that one partner dies.
1. Cohabiting couples do not have the same rights as married couples
It is a widely misunderstood myth that cohabiting couples have similar rights to married couples. There is no legislation that recognises cohabiting couples as being ‘common law married’ after having lived together for several years. The legal system still takes a traditional view that cohabiting couples are not formally recognised and therefore have no automatic legal protection. However, much like the no-fault divorce has put a modern spin on how marriage separation is handled, there is evidence that the law could eventually change to more closely reflect 21st century practices. The Department for Work and Pensions announced in February 2023 that cohabiting parents are now able to claim bereavement benefits to help them bring up dependent children. This followed cases where the High Court awarded bereaved cohabiting partners when they applied for bereavement support payments, after their applications were originally rejected because the couples weren’t married.
2. You can get legal protection with a cohabitation agreement
Similar to drawing up a pre-nuptial agreement, a cohabiting couple can protect their legal rights by creating a cohabitation agreement. In this document the couple would agree what assets they own equally or individually and how these would be shared upon the relationship breaking down, or the death of one partner. It could also provide for what happens to any children from the relationship. The agreement needs to be open and honest, and the couple should get independent legal advice to ensure it is fair, reasonable and legally enforceable. It is important to maintain the agreement as up to date, to reflect changes such as who is financially contributing, and if children are born. The agreement remains valid if one of the partners dies, subject to any conflicting provisions in either party’s Will.
3. Unmarried fathers don’t automatically have parental responsibility
A father does not automatically have parental responsibility for a child unless they are married to the mother. However, they can gain parental responsibility by jointly registering the birth and having the father’s name on the birth certificate. If the couple were married, the father would automatically have parental responsibility. Having parental responsibility means both cohabiting parents have rights and responsibilities in relation to how the children are brought up and where they live, and therefore jointly registering the birth in this way provides extra security for the children in the event of one parent unexpectedly dying. If a parent is not on the birth certificate, they can gain parental responsibility (PR) to entering into a parental responsibility agreement with their partner. PR also provides more legal protection for a parent if the couple separate in the future.
4. Making a will is a good idea
If a cohabiting partner dies intestate (without making a will) the other partner has no automatic legal claim to their estate. If a married partner dies intestate, the surviving partner automatically has legal claims to their assets. So a cohabiting couple can make a will to ensure each partner has rights to each other’s assets and can continue living in the home they shared, regardless of the ownership status of the property, in the event that one of the partners dies.
5. Understand your property and pension rights
If a cohabiting couple buy a property, they can protect their status in the event that the relationship breaks down or one of the partners dies. When buying the property, the cohabiting couple can become ‘joint tenants’, which means they have equal rights to the property and are effectively a single legal entity. Alternatively, they can become ‘tenants in common’, which means they own shares in the property separately and these can be for any percentage share. It is recommended that the cohabiting couple draw up a ‘declaration of trust’, which is a document which clarifies the ownership status of the property and the agreement as to what will happen to the property in the event of the relationship breaking down or one partner dying. This can also be supported by a cohabitation agreement to include how they shall each financially contribute towards the property and any option to buy the other out on separation.
With a pension, cohabiting partners are not entitled to the state pension of their partner in the event of their death, unlike married couples who do have this legal entitlement. It is possible to gain an entitlement to a private pension, but this would require one partner to nominate the other partner as a dependent and beneficiary, and even then this might not be possible for all private pensions. Of course this would need to be done while the partner was still alive and if this is not done, the surviving partner has no claim on a private pension. It is recommended that independent financial advice is sought from a financial adviser on the issue of pension entitlement.
Contact Consilia Legal for support and advice as a cohabiting couple
If you are a cohabiting couple and want to discuss your legal status and how it can be protected, contact Consilia Legal today. We have specialist family law solicitors who can talk to you about cohabitation agreements and property ownership, and can help you with the steps you need to take to give yourself some legal protection.