THE BLOG

How Your Rights Differ If You Cohabit Instead Of Getting Married

01/12/2017 11:31 GMT

Couples who live together have the same level of love, commitment and loyalty as married couples, yet in the eyes of the law the rights they have differ drastically.

There is no such thing as a ‘common law marriage’ and as we come to the end of Cohabitation Awareness Week, which was organised by family lawyers’ organisation Resolution to shed light on the issue, it is important to think about your rights as a cohabitee and take action to protect yourself.

Here are some ways that a couple who live together can lose out.

If a partner dies

If someone dies without making a Will, the rules of intestacy come into play. For a married couple this means that the surviving spouse would inherit. For a cohabiting couple, they will inherit nothing unless they owned a property jointly as joint tenants (which means the co-owner automatically owns the whole property on the death of the other).

Even if the other partner has lived in the joint home for decades, without their name on the deed or as a beneficiary in the Will, a cohabitee could lose their home and any right to proceeds from the sale.

If you split up

If your home is in your partner’s name, as a cohabitee you have no right to stay there if you are asked to leave beyond a reasonable period of notice. Married couples have the right to live in the ‘marital home’ when they split up and can register that right at the Land Registry to prevent their spouse from selling or mortgaging the property without their knowledge.

The law protects married people by ensuring financial provision for them on divorce, which can be particularly important for those who stay at home to care for children and do not have independent resources. However, that wide range of financial provision is not available for cohabitees. This means that a stay at home partner cannot make any claims for maintenance or pension-sharing orders. They can only claim an interest in property if they are a joint owner or, if they have children together, temporary provision of a home for the benefit of children which would ultimately return to ownership of their partner.

How to protect yourself

There are various ways to protect yourself and your family if you live together and chose not to get married or enter into a civil partnership.

1. A cohabitation agreement sets out your intentions for things like finances, property and arrangements for children if you split up.

2. A Declaration of Trust can be used to set out how you want to own a property and in what shares, as well as covering what happens if you split up.

3. Finally, a Will allows you to set out what you want to happen to your property and assets when you die, and many cohabitees use a Will as a way to ensure that their partner does not lose out.

There have been calls for reform from senior family judges, lawyers and couples themselves, yet there seems to be little political will to change the law to give cohabitees the same rights as married people. Until the law changes, it is important to know your rights and take action to protect yourself.

Sarah Atkinson is a partner in the family team at Stephens Scown LLP. To contact Sarah call 01872 265100, email solicitors@stephens-scown.co.uk or visit www.stephens-scown.co.uk