The rights of cohabiting couples Q&A

July 18, 2019

We participated in Solicitors Chat on Twitter answering questions about how Solicitors can help cohabiting couples protect their rights and the considerations unmarried parents should be aware of.

Luke Stephens, our Trainee Solicitors in our Matrimonial department was on hand to provide some much needed guidance.

We’ve set out our answers out below:

1. What does ‘common law marriage’ mean when people refer to cohabiting couples? Is it a myth?

Although some common law principles will apply to cohabiting couples, they certainty do not enjoy the same rights and protection that are given to married couples. Resolution recently carried out a survey which found that two-thirds of cohabiting couples wrongly believe that ‘common-law marriage’ exists when dividing finances upon separation. In essence, this is a false assumption and cohabitees may place themselves in a difficult position if the parties do not clarify their position in relation to assets, income and children.

Much of the protection afforded to cohabiting couples through common law principles do not give the same clarity that exists for married couples.

2. How do the rights of married and unmarried couples differ?

There are a number of rights that differ between married couples and cohabiting couples in a range of different circumstances:

• Firstly, if a cohabiting partner dies intestate (without a will) the surviving partner will not automatically inherit anything, unless the home is jointly owned. An unmarried partner would have to apply through the Inheritance Act 1975 to seek a reasonable financial provision. Nevertheless, there is still no guarantee of receiving anything from the deceased estate. Contrastingly, a married partner would inherit all or some of the estate.
• If a cohabiting father is not named on the child’s birth certificate as the father, he will not automatically have parental responsibility for the child. Therefore, an unmarried father that wishes to obtain parental responsibility will have to either enter into a parental responsibility agreement with the mothers consent or apply for a parental responsibility order from the court.
• Cohabiting couples are not legally obliged to support each other financially and therefore this is a cause for concern for the cohabiting partner with a lower income capacity. In contrast, married couples have a legal obligation to maintain their spouse.
• An unmarried partner who stays at home to care for children cannot make any claims in their own right for property, maintenance or pension sharing orders.
• Unmarried couples have the capability to separate without the intervention of the courts, whereas married couples must go to court to obtain a decree absolute, which officially ends the marriage.
• Should the relationship break down with un-married couples, there is no automatic right to make a claim as to the ownership of the property if it is registered in the sole name of their partner. They may only establish a beneficial interest through establishing either a resulting or constructive trust. A married couple will automatically have a legal interest in their partner’s property as a matrimonial asset.

3. What legal considerations do you think unmarried parents should be aware of?

A father who is not registered on a child’s birth certificate will not have parental responsibility for the child, despite being heavily involved in the child’s life. Therefore, it is important that unmarried fathers consider seeking parental responsibility through either a Parental responsibility agreement with the mothers consent or through a parental responsibility order through the courts.

Cohabiting parents should also be aware that in the event of separation there are clear provisions for their children. Therefore, it is important for there to be clarity around assets and income, should such an event occur.

4. Tell us what a cohabitation agreement is and how it could help unmarried couples.

Cohabitation agreements are slowly becoming more popular to unmarried couples looking to provide themselves and their assets with greater protection upon entering into a long term relationship. Effectively, cohabitation agreements allow unmarried couples to decide what should happen to their assets and income during their relationship. In addition, they can help to ensure that the treatment of such assets is fair and reasonable for both parties during the course of the relationship and upon the event that the parties separate.

Without such agreements there is often a lack of clarity between unmarried couples which can unfortunately lead to disputes upon separation. A cohabitation agreement can also play an important role in helping a couple to specify a financial settlement and maintenance for the children if separation does occur.

5. Are there any other measures cohabiting couples can put in place to protect themselves if they split up or one of them dies?

Upon the death of a cohabiting couple, there will be no automatic entitlement for an unmarried partner when applying the intestacy rules. Therefore, to ensure that a provision is left to that partner upon the death of the other, it is crucial that there is a will in place clarifying what they are entitled to.

In addition, upon the separation of an unmarried couple if a cohabitation agreement is in place, this will set out the parties assets and how it they are to be divided. Subsequently, this is likely to reduce the likelihood of disputes in the event of separation. This again emphasises the importance of a well thought out cohabitation agreement. Such disputes between separated couples can often lead to both parties building up unnecessary costs to simply conclude their financial positions.

If you need assistance with a Cohabitation Agreement, or would like to speak with one of our Family Lawyers in more depth about cohabiting couples, call us on 0800 158 4147 to book an initial 45 minute consultation.