Your rights in cohabitation - what you should know

If you have just been living together then you should be aware that there is no such thing in English law as a "common law wife" (or husband for that matter). If you live together and your relationship breaks down then it is each man or woman for themselves.

There are 3 essential things a couple who are going to live together should do:

  •     make sure the house/tenancy etc is in joint names, in appropriate shares
  •     set up a simple cohabitation agreement
  •     make a will

THE HOUSE

Unlike married couples, unmarried couples have no basic rights to their partner's property or to maintenance if they split up. Basically what is his is his, what is hers is hers, and what is jointly-owned needs to be divided.

This applies to the home as well. Therefore if a house is bought in joint names (either as beneficial joint tenants - meaning  that they own in equal shares, or as tenants-in-common - where a couple can own in unequal shares) then it should be split accordingly on separation and either party can force a sale of the property to realise their share. If the parties are contributing unequally to the purchase price, or to payments on the property, then this should be reflected by being designated as tenants-in-common and holding unequal shareholdings (say 70% and 30%), rather than the equal shareholdings of beneficial joint tenants.

If the property is in the sole name of one party  it will remain that person's property on separation, unless the other party can establish that there was a common intention that they would be entitled to a share in the property.

COHABITATION AGREEMENT

A cohabitation agreement will give financial security to those who are in an unmarried relationship. Couples who merely live together have no automatic rights to each other’s money and it would be prudent to establish this agreement, which is a legally binding agreement recognized by the courts. It may save much heartache if the relationship breaks down and allow for a cordial parting of ways.

DEATH

The other essential matter for unmarried couples to consider is what might happen when one of them passes away.  Unless they make a will in favour of their partner, then, should they die, their estate will pass to their immediate family under the intestacy rules, rather than to their companion (except their share in the home if they are joint owners and hold as beneficial joint tenants).

An unmarried partner will not even be entitled to take out a grant of letters of administration and administer their partner's estate, as they are not a relative of the deceased.

If the relationship is a serious one, then one of the first things they should do is to each make a will. A will can always been amended, changed or added to, but if there is no document at all, then the deceased's estate will simply pass to the appropriate family members or even the Government, rather than to the deceased's partner.

CHILDREN

If the parents of a child are unmarried, then only the mother has any automatic rights in respect of the child. She alone will have parental responsibility for the child, which covers all aspects of his/her welfare and upbringing. However, since 1 December 2003 (s111 of the Adoption & Children Act 2002) it is now easier for an unmarried father to acquire similar rights.

All he needs to do is to register the birth of the child with the mother.  An unmarried father can also acquire joint parental responsibility or in extreme circumstances sole parental responsibility, if the parents have entered into a Parental Responsibility Agreement (see below). Fathers can also apply to the court to obtain an order.

The father can apply to the court for joint parental responsibility, a residence order (i.e. that the child lives with him rather than his/her mother), or for a contact order (i.e. that he should be entitled to see his child on a regular basis).  If an unmarried couple split up, the mother will automatically have the right to look after her child in a manner and place as she sees fit, and the father will not be able to challenge her unless they entered into a Parental Responsibility Agreement or he has a court order in his favour.

PARENTAL RESPONSIBILITY AGREEMENT

This is an agreement between a mother and an unmarried father to bestow equal responsibility for their children upon the father.  It grants the unmarried father authority to have responsibility for his child in the absence of the mother and gives him a right to be consulted when important decisions are being made with regard to the child(ren)’s welfare.

 

 

Disclaimer

Whilst every effort is made to ensure that the legal information contained on “YouandYourRights” is accurate, it does not constitute legal advice tailored to your individual circumstances. If you act on it, you acknowledge that you do so at your own risk. Neither the Proprietor nor Dean Dunham can assume responsibility and do not accept liability for any damage or loss which may arise as a result of your reliance upon it.

 

 

Last updated: 2 February 2013

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