The number of cohabiting couple families in the UK has risen by 25.8% over the past decade, growing faster than the number of married couple families. It’s great that people no longer feel they have to conform to society’s expectations of what makes a respectable home or a conventional family, but it’s also important that people are informed about the risks still involved in choosing not to marry.
Many unmarried couples assume they will have the same legal rights in the event of a split as divorced couples, particularly if they have lived together for a long time. However, the often-cited rights of being a ‘common law’ spouse simply do not exist, because a common law marriage has not been recognised by UK law since 1753!
Both men and women can be exposed to the risk of losing out financially or losing their home if they separate, and the issue can affect both male/female and same-sex couples. For couples with children, there are also considerations around who has rights and responsibilities for the children.
While no-one expects to split-up when they embark on a cohabiting relationship, things don’t always turn out as planned. Moreover, however much you trust your partner and might expect them to do ‘the right thing’ if you ever split, disputes over rights and responsibilities can quickly escalate into an unamicable split, and unmarried couples can find themselves with few financial, property and parental rights.
The good news is that these risks can all be managed, as long as steps are taken to put legal protections in place, rather than relying on assumptions that everything will work out fine. Just as being legally married provides rights for couples who divorce, putting a legal framework in place protects those who are cohabiting to ensure they are not exposed to financial loss, the loss of their home or the loss of any say in their children’s future in the event of a split or the death of a partner.
Cohabitation contract
The simplest and most effective way to ensure that any potential split is managed fairly is to have a legal agreement drawn up, which outlines the rights and obligations of each partner. This cohabitation contract can be drawn up by a family law solicitor and should clearly set out what would happen in terms of sharing assets in the event of a split. This simple legal process provides each partner with legal protection and ensures that there are no misunderstandings or rethinking of what’s fair and unfair after a relationship has broken down.
Where a couple own a home together, the cohabitation contract should include a declaration of trust that clearly sets out the ownership rights of each partner so that the value of the house can be fairly split between you if you separate. This should be based on each partner’s contribution to the home, which may be measured financially and in terms of care and maintenance of the property.
People who are married or in a civil partnership have automatic ‘home rights’ if they split with their partner, which means that they have a right to stay in their home even if they don’t own it or are not named on the tenancy. These home rights do not apply to partners in a cohabiting relationship, so having a declaration of trust in place is vital in this situation.
Each couple’s circumstances are unique to them so it’s important to have a full discussion with an experienced legal practitioner who can talk you through all the financial and property considerations you need to include in your cohabitation contract and declaration of trust. This should include assets such as cars, furniture and electronic equipment, along with financial matters including pensions, investments and savings. It’s important to note that both partners will have the same legal rights to an account held jointly in both names but no rights to an account held only in their partner’s name, unless this is specifically covered by their cohabitation agreement.
It is also prudent for cohabiting couples to make a will, which you can do on either an individual or on a joint basis (known as a mirror will). Your partner will not inherit your assets if you have no will in place, regardless of how long you have been together, because, unlike a spouse, they are not your next of kin. A will won’t protect you financially if you and your partner separate but it will ensure your wishes are implemented if either of you should die.
Parental Rights
Any relationship breakdown involving children can be particularly complex and distressing because consideration must be given to what’s in the best interests of the children.
A child’s mother has automatic parental responsibility for her child but, if they are not married to the mother, fathers do not. Unmarried fathers must jointly register the birth and have their name on the child’s birth certificate, along with the mother’s, to secure parental responsibility and ensure they have a legal claim to rights and responsibilities for their children.
As with any break-up, the ideal scenario is for both partners to come to an amicable agreement regarding care of the children and financial support for the children. Where an agreement cannot be reached informally, mediation may be the most sensible step, and if a resolution still cannot be achieved, a family law practitioner may be necessary.
It’s important to note that both parents have a responsibility to care for their children and support them. Child maintenance obligations apply to unmarried parents in just the same way as they do to married parents and unmarried parents can apply to the Child Maintenance Service for child support. They cannot, however, apply for maintenance for themselves from their former partner.
Looking after the children’s longer term financial interests should also be factored into decision making following a split. If a child is due to inherit money or assets, or has financial provision for assistance due to a condition or injury, this can be protected by a child trust, which will prevent the future partner of either their mother or father gaining access to it.
Be Prepared
The last thing anyone wants to think about when embarking on a new relationship is ‘what happens if we split?’ but there is no harm in being cautious and it could protect you from a whole range of extra heartache if the worst happens. That’s why Adroit’s panel of vetted and monitored solicitors, legal practitioners and estate planners are here to help our clients’ employees and customers prepare as well as they can for whatever life might throw at them.
