Today we have an article from Everys Solicitors – our trusted family law solicitors in Exmouth. The article was written by Moira Reynolds.
Cohabitation is a term used to describe two people who are in a relationship with each other and are living together but who are not married. There is no such thing as a ‘common law marriage/relationship’. The legal rights of cohabiting couples are very different to those of married couples or civil partners. This is particularly relevant in relation to provisions for children, finances and inheritance rights. Undoubtedly, these will always come to the fore if couples separate.
When people decide to set up home together, few think much about what will happen if their relationship ends or, sadly, if one of them dies. For married couples, the law is fairly clear-cut, but for people who cohabit things can become very problematic. You should consider the effect that living together has upon the following examples, for instance:
• Owning a home together
• Having children together
• Impact of separation and rights to make financial claims
• If you were to die without making a will
Buying a house
It is possible to own property as “joint tenants” or “tenants in common”. If you own property as joint tenants, then this means that if one of you dies the property will automatically pass to the other person by way of survivorship. It is irrelevant what you have said in your will about that property. If you own the property as tenants in common (which will specify the shares in which you hold the property and may not be equal), then this means that your share of the property, whatever that may be, can be left under the terms of your will or by the rules of intestacy. Therefore, if you own the property as joint tenants and do not wish your spouse to inherit the property if you die, then it will be necessary to sever the joint tenancy of the property to change it to tenants in common.
If you intend to buy a property together, a Declaration of Trust allows you to state clearly what should happen regarding your property ownership and individual financial interests in that property. If you want to be sure of what will happen to a property if you were to split up, this document is unequivocal and can be relied upon to represent your respective considerations at the point of purchase.
Having children together
There are various considerations here, e.g.:
• Parental responsibility
• Financial support
• Whose name the child should have
• Child arrangements if you were to split up
In England and Wales, a father will automatically have parental responsibility over a child if they are named on the birth certificate or married to the mother. Parental Responsibility gives you the right to make decisions about a child’s upbringing.
If the father is not married to the mother and has not been named on the birth certificate, there are other ways to get parental responsibility. If the child’s mother, or anyone else with parental responsibility (like a grandparent), agrees to providing parental responsibility, it is possible to make a joint application to Court.
So, what legal protection is offered to cohabiting couples with dependent children? In short, there are no specific legal provisions for cohabiting couples when it comes to separation or one person’s death. When it comes to dividing the family home, this will fall to property law, and, where children are involved, the Children Act 1989 will need to be relied upon.
Neither of these areas of law will make provisions for the needs of the parents themselves and they will not take into account non-financial contributions that either person has made to the relationship (such as giving up work to raise the children). This means that one parent could find themselves destitute as a result of their separation.
Where there are children of that relationship, the only claim that a party has is for child support which is the money that a parent without day-to-day care of the children must pay to a parent with day-to-day care to assist with the maintenance of the child or children involved. This is calculated by the Child Maintenance Service, in accordance with a fixed formula.
This can be particularly worrying for a parent who does not own or have any rights in the property in which the family were living. This could be particularly concerning where that parent will continue to be the main carer for the children. This, again, is where the Children Act can play a role in addressing the financial needs of a child. It is possible to make Schedule 1 claims against the other parent so as to allow the Court to address some of the financial needs of dependent children. Please be aware that these needs are those of the child/ren and not those of the parent.
In certain cases, the Court has the power to award the following:
1. The transfer of a property. The housing needs of a child are met by transferring property (usually the former family home) to a parent until that child is an adult.
2. Lump sum payments to cover capital expenditure. This is usually for items which depreciate such as cars, computers or, perhaps, to cover expenses already incurred.
3. Periodical payments to address the costs of a child’s disability or school fees, or to provide top-up maintenance.
The child can take either the mother’s or the father’s surname at birth. Both parties should think very carefully before agreeing which name the child should have as, once this is on the birth certificate, neither parent (with parental responsibility) will be unilaterally able to change that child’s name without the formal agreement of the other and, usually, a Court Order is required.
It is important to note that both parents have just as much right to contact with their child as the other. This is not dependent upon the amount of child support paid. When two parents do not live together, or have separated, it is important to try and create a practical timetable when each parent can see the child.
Both parents can agree this informally or, if this is not possible, a mediator can help you to reach an agreement – although a decision reached through mediation is not legally binding. If either parent does not stick to the agreed schedule, it may be possible to make an application to Court. This should be the last resort.
If you cannot reach an agreement about how often the children spend time with you or your former partner, you can make an application for the Court to decide. It is likely you will need to attend a mediation session before you can make the application.
Aside from potential issues arising with contact and the children, couples who are unmarried have no automatic entitlement to financial support from each other when they separate. Nor can they register home rights to prevent their partner from selling the house without having a legal interest in the property in their own right. This creates a great deal of uncertainty.
If the couple own a home together, there is no automatic right for the person with care of the child to remain in that property. Similarly, if you are an unmarried partner of a tenant (in private or social housing) then you will not usually have rights to stay in the accommodation if the tenant asks you to leave.
To avoid these issues, consider the Declaration of Trust as detailed above if you own property jointly. If in social housing, you could consider being joint tenants with equal rights and responsibilities. If you are in private rental, then one person may remain and seek the tenancy in their own right but will have to repay to the other half any deposit that person has paid and be able to meet the monthly rent payments in their own right.
In certain circumstances, cohabitees can benefit from the deceased partner’s pension. You need to have taken very clear advice from the Pension Provider and usually must be named on the Policy as a benefactor. There is no automatic right otherwise. It might also mean that the remaining partner is not entitled to the deceased’s partner’s life insurance policy unless specifically stipulated. Pension policies tend to differ dramatically, so if you are in a relationship and are not married to your partner then you should stipulate to whom your pension should be paid in the event of your death. For some pension schemes this can be relatively simple and done through an “expression of wishes form”. For other schemes this may not be possible, and you may need to seek legal advice on what to do. For life insurance policies, if you want your unmarried partner to be the recipient of a pay-out in the event of your death then they must be named in your policy as the recipient.
In addition to the above, it might be possible to bring a claim against the deceased person’s estate. For instance, if you have children with the deceased, under the Inheritance (Provision for Family and Dependents) Act 1975 you may make a claim for financial support in respect to those living children.
In terms of the other assets of the deceased, a surviving partner will only inherit if this is stated in the deceased partner’s will. This can come as an extremely nasty surprise to some people who are already mourning following the loss of their loved one, sometimes after many years of living together, and are having to deal with everything else that follows a close bereavement.
This aside, as is the case when anybody passes away without leaving a will, the “rules of intestacy” apply. This means that the relatives of the person who has passed away will be the beneficiaries of their estate (even if they were not on speaking terms, had not seen each other for years or did not even know each other), and the surviving partner, who might have lived with the deceased for the last 50 years, receives nothing.
What can you do if you do not want to get married?
If a cohabiting couple does not want to get married but does want to put measures in place to legally protect themselves in the event of a separation, there are steps they can take. One option is to put a Cohabitation Agreement in place.
With a Cohabitation Agreement (also known as a Living Together Agreement), a couple can set out exactly how they will manage their money during the relationship, as well as what will happen in the event of their separation.
A Cohabitation Agreement will not interfere with any provisions made for children under the Children Act 1989, but it can help the couple to agree on how money matters should be dealt with between them.
Such an Agreement will not have any affect upon the will status and/or pension status as detailed above.
There is an awful lot to consider before you begin cohabiting and it is best to take advice as to how you can both protect your positions. If you would like to speak to someone, we are happy to help. Please call 01392 848911 to speak to one of our Family solicitors.
Moira Reynolds is a Partner at Everys Solicitors and is the Head of Family. She has worked in Family Law since 2000, qualifing as a solicitor in 2005, and is a member of Resolution – the national organisation for Family lawyers.
Although Moira acts for clients in all aspects of Family Law, her particular expertise is in dealing with complex and/or high net worth financial matters which have a business or pension element; and advises clients who have built up considerable NHS/Forces/Police Service pensions, as well as those who have worked in industry for many years.