What is cohabitation?
Marriage is a legally or formally recognised union of two partners, while cohabitation refers to a couple that is living together but not married or in a civil partnership.
Many couples choose to live together rather than marry, or to live together first before they marry. People living together are called ‘cohabitees’. In cases of separation, cohabiting couples don’t have the same rights and protections as people who are legally married.
Cohabitations vs marriage is an evolving area, as more and more people choose to cohabitate before they are married but are unsure of their rights or consequences.
The Common Law Myth
A common misconception amongst cohabiting couples is that by living together they are considered to be their partner’s common-law husband or wife and that this will allow them to make financial claims for themselves against their partner if the relationship breaks down. However, a common law marriage simply does not exist under English law, and it is a widespread misunderstanding that having lived with your partner for a long time you will be afforded the same legal rights and protection upon separation (with regards to finances) as a married couple.
This is not true- you are either married or not, and your legal remedies are incredibly different. It is important for us to make people aware that the rights of cohabiting couples can in fact be very restricted and are often much more limited when it comes to financial claims, including property ownership. This applies even if a couple has children together, and when the couple has lived together for decades and one partner has sacrificed their career to raise that child.
With that in mind, it is about time that the law in England and Wales caught up with other jurisdictions and recognised the ever-increasing number of cohabiting couples so that they would be extended better legal protection upon the breakdown of a relationship.
Legal Consequences of Marriage and Cohabitation
There are a number of ways that rights differ if you choose to cohabit as opposed to getting married so here are some of the legal differences when regarding cohabitation vs marriage :
Rules of Intestacy
When one cohabitee dies, his or her property will pass to whomever is named in their will or will go to certain members of his/her family in a situation where he/she dies intestate, i.e. without any will. The order by which certain family members inherit is known as the Rules of Intestacy. The surviving partner is entitled to make a claim but only if they can demonstrate that they were living effectively as husband/wife/civil partner for the two years preceding death or that they can show that they were being maintained by the deceased immediately prior to death. Contrast this with a married partner who under the Rules of Intestacy will inherit most of the Estate (and all of it if the couple had no children). In addition a married partner, should they make a claim, is entitled to a more generous financial provision.
Capital or maintenance claims
An unmarried partner who stays at home to care for children cannot make any claims for capital, or maintenance (for themselves) and can only do so on behalf of the children. Any settlement of property is usually only until the children finish education and then it reverts to the other parent. The unmarried partner can only claim against a property if they can make out a current beneficial interest under the law of trusts, usually confined to whether they can prove they made a contribution to its purchase.
Pension Sharing Order
An unmarried partner cannot apply for a pension sharing order for themselves or their children.
Bank account access
Cohabiting partners cannot access their partner’s bank account if their partner was to die, whereas married couples may be allowed to withdraw the remaining balance.
Cohabitation can be ended simply and informally by just physically separating. There is no need to involve the court. However, married couples need to involve the court in order to formally end the marriage as divorce is a judicial process.
Common Law Duty
Cohabiting couples have no legal obligation to support each other financially after they have separated, whilst married partners have a common law duty to do so. There is no automatic right to maintenance on divorce but divorcing parties can apply to the court for maintenance.
Matrimonial Home Rights
If you are the unmarried partner of a tenant, you have no rights to remain in the accommodation if you are asked to leave, whereas each married partner has the right to remain living in the “matrimonial home” until divorced. If the property is owned by one spouse, the other can enter a Matrimonial Homes Notice on the title at the Land Register.
What does this Mean in Practical Terms?
The situation can be especially problematic in the case of a stay-at-home mother or father. A common example is when a wife leaves her job to stay home and manage the household and look after the children in order to free her husband up so that he can focus on his career.
Broadly speaking, the law generally awards the homemaker with a fair share of the assets and income after divorce. In the event of death, they will inherit some of the estate automatically and have the right to claim against the estate if reasonable provision has not been made by the will. A cohabiting partner, on the other hand, could end up receiving nothing for themselves, even if they have been living together for a number of years and have children together.
On death the cohabiting partner would only be able to claim against the estate if they proved financial dependency just before the death or that they were living, effectively as a married couple in for at least 2 years before death – however, even if they were successful in making the claim, the provisions the Court awards are often far less generous than had the couple been married.
In England and Wales, the law gives married couples who separate a legal right to claim maintenance (income) and share of joint assets such as pensions, property, savings and investments. The court has a wide discretion to readjust income and assets to provide a fair outcome. A court will take many factors into account in deciding a fair division (although in practice this is generally negotiated by the parties via lawyers or in mediation without having to ‘go to court’).
If you aren’t married but you live together, these rights do not exist, even if you have been living together for a long time and/or you have children. Should you separate without being married then any claims are limited to:
- Claims for the benefit of children either by way of maintenance or in some circumstances capital and housing provision under Schedule 1 of the Children Act, and /or
- Claims to a beneficial interest in a property of your partner’s if you can prove a trust existed
Parents who are planning not to get married should be especially cautious. Having a child will immediately create lasting legal commitments in a way that cohabitation will not. For example, parents are generally obligated to provide support for their children until they reach 16 (or 20 if they’re in full-time education up to A-level or equivalent). So, if cohabiting parents split up, one cannot just walk away and leave the other to parent. The parent that is not caring for the child will have an obligation to pay child maintenance just as any divorcing spouse would do. So, whilst a cohabiting partner can move out with few legal commitments, a cohabiting parent cannot.
How do I Protect Myself?
A Cohabitation Agreement is a document that sets out what will happen to assets, finances and family if you and your partner should separate. It can cover everything from property rights and shared assets to the care/residence of children and pets. It is designed to protect both parties from legal issues and legal costs that may arise, as well as uncertainty and unnecessary disagreements following a breakup.
However, it is debatable whether such agreements are in practice enforceable.
Further, you cannot make pension provision part of any such agreement as pension share orders can only be made by courts on divorce.
One most important way to give the financially weaker cohabitee security is to ensure any real property is held in your joint names (that both names are registered at the Land Registry) or have a formal Deed of Trust drawn up to ensure your beneficial interest is acknowledged and protected by registering a Notice or Restriction at the Land Registry.
Depending on the nature of your relationship, consider each making a will providing for the other (although do be aware that people can change their will at any time). Another way of giving protection in the event your cohabitee dies is by ensuring there is an adequate life insurance policy in place.
The Law Needs Updating
It is therefore evidently clear that the law needs updating. A number of organisations (such as Resolution) campaign tirelessly for a change to the law in England and Wales, but this is yet to happen. Although the Cohabitation Rights Bill (addressing the rights of cohabiting couples) is in the early stages of being reviewed by Parliament, we are yet to see whether this Bill will be given sufficient consideration, particularly as Brexit continues to dominate parliamentary time.
We firmly advise that anyone considering cohabiting with a partner should be fully aware of the legal situation they are putting themselves in, before committing to the same.
If you would like more information on cohabitation agreements and/or your associated rights, please do not hesitate to contact a member of our London family and divorce team who would be happy to assist on 020 7228 0017.