If you are living with your partner, and you not married, the law (in England & Wales) is clear that you do not have the same legal rights available to a married couple upon divorce. This is the case no matter how long you have been living together.
Some unmarried couples are under the mistaken belief that they are “common law” husband and wife and therefore upon relationship breakdown they will have the same or similar rights to a married couple upon divorce. This is a myth and there is no such thing as a “common law” spouse.
As the law currently stands, an unmarried person has no claim for maintenance for themselves (but they do for children), no claim against any asset in the other party’s sole name, no entitlement to real estate or security of tenure (except for in certain exceptional circumstances).
Entering into a cohabitation agreement can seek to eliminate one party’s potential claim against real estate. It can also regulate how the couple will conduct their finances both during the relationship and in the event of a break up.
Whilst some may consider the law to be harsh on this aspect, others will say it does provide a certain degree of clarity. In short, you’re either married or your not. Marriage is a contract and with that comes the benefits and liabilities of a contract – for richer for poorer, you go with the rough and the smooth. If you chose not to enter into the contract of marriage, why should you get any benefit from it? If you’re not married you won’t be liable for any of the downside (provided you’re not named on any of the liabilities).
All this apparent unfairness can be largely resolved by some forward planning. So if you chose not to get married, but you want to protect you and/or your partner, then consider whether the following would resolve the issue:
- If one of you is putting more money into the purchase of a property, then make sure you tick the correct box on the TR1 form saying that you hold the property as tenants in common in unequal shares. Then have a declaration of trust setting out what those shares are.
- If you can afford to buy a property without any input from a third party, then consider holding the property in your sole name and enter into a cohabitation agreement so that a cohabitee cannot claim an interest later on (usually when the relationship ends).
- Make a Will setting out who will benefit from your estate upon your death – remember, cohabitees don’t automatically inherit on intestate as a spouse would.
- Speak to your pension provider to see if you can nominate your cohabitee to receive benefits upon your death.
- If you don’t want to be left with all the debt, don’t have the debt in your sole name when you borrow the money in the first place. Either both be on the credit card (which can cause problems if one uses it more than the other party) or both be on the loan. But remember that you are likely to be jointly and severally liable for the debt, so if your other half doesn’t pay their share the creditor will come after you for it. The same rules apply for a mortgage too.
HM Government is presently considering whether to give greater rights to unmarried couples upon separation. However, there is no guarantee that we will see reform giving cohabitants greater rights in England & Wales, as they do abroad. In the meantime it is best for individuals to seek legal advice to determine how they can protect their legal position upon separation.
Family Solicitors at Slater and Gordon offer expert legal advice, guidance and representation on all aspects of cohabitation. For a free initial consultation call freephone 0800 916 9055 or contact us online and we'll be happy to help.
Slater and Gordon Lawyers have offices in London, Manchester, Liverpool, Birmingham, Sheffield, Milton Keynes, Bristol, Cambridge, Cardiff, Edinburgh, Halifax, Newcastle, Wakefield and meeting rooms in Bramhall, Cheshire.