There is a common misconception that couples who are living together (cohabiting) have the same rights as married couples. This misconception has led people into financial difficulty through not being prepared after separation or after a partner’s death. Generally, you will have fewer rights if you’re cohabiting than if you’re married, but it’s important to know where you stand.
There is a common belief among cohabiting couples that they are classed as common law spouses. However, unlike a marriage, this is not a recognised legal status. You can formalise certain aspects of your status to give you greater protections if you separate, such as drawing up a cohabitation agreement.
A cohabitation agreement acts a little like a pre-nuptial agreement, and details how you and your partner will manage or share things like money, property, childcare arrangements and even arrangements for pets should you separate. Although not legally binding in England and Wales, a judge will take a cohabitation agreement into consideration if you have to involve the courts in your separation. A solicitor will be able to help you draft a cohabitation agreement that is fair and covers all your needs.
Bank accounts and debt
If you and your partner hold your money in a joint bank account, either as a cohabiting couple or a married couple, you will both be joint owners of the money, even if only one of you ever makes any deposits. If your relationship ends, then the money will still belong to both of you. However, if you are cohabiting and you have not had any use of the account at all, then it may be difficult for you to claim any right to the money in the account. In both cases it is advisable to close any joint accounts upon separation so that there is no risk of one partner accessing the money and running up large debts.
If you and your partner have separate bank accounts, then you are each in charge of your own money and your partner will not be able to access your account. However, if you are married and your partner dies, you may be able to access their account, once their estate has been settled. If you are a cohabiting couple and your partner dies, you may be able to request access to the account, but this depends on various factors such as if there was a Will and how much money is in the account etc.
Debts work in a similar way to money held in bank accounts. Generally, any debts that are in your own name will be solely your responsibility, whether you are married or cohabiting. You may be responsible for the debts that are in joint names, such as council tax or if you have acted as a guarantor for your partner’s debt you will be held responsible for paying it. Any debts that your partner had before marriage will not be your responsibility.
When it comes to arrangements and welfare of children, it is more important who has Parental Responsibility rather than whether you are married or living together. Parents with Parental Responsibility have the right to make decisions about their child’s upbringing until they are 18 or until such a time that certain circumstances cause the Parental Responsibility to be revoked. Both parents are also responsible for financially supporting their child, regardless of whether the father is named on the birth certificate or not and regardless of whether or not the child is living with just one parent.
If you separate as a married or cohabiting couple, you will have to make informal arrangements about your child’s upbringing and the contact each of you will have. If you cannot come to an agreement, then you can apply to the courts for a Child Arrangement Order.
In the event of your death, whether there is a Will or not, your child will have the right to inherit from you and your partner (married or unmarried) and also both of your families. If you are married both you and your partner can appoint a guardian to act for you in the event of your deaths. However, if you are cohabiting, the mother may appoint a guardian to act for her upon her death, whereas the father can only do this so long as he has Parental Responsibility.
If you are married and your partner dies leaving a Will, then you will inherit anything that they have left for you as stated in the Will. If there is no Will, then you will either inherit all or some of their estate. You will usually be able to inherit from your spouse tax-free.
If you are cohabiting, unless your partner leaves provisions for you in their Will, you may not inherit anything unless you were joint owners of any property. If you inherit money or property from an unmarried partner, you are not exempt from paying Inheritance Tax, as married couples are.
Your rights in terms of property can depend on the type of tenancy you are under (if applicable) and also your legal status.
For example, if you are living with your partner who is a tenant in private or social housing or the sole owner of a property, you will usually not have the right to stay should your partner ask you to leave. However, you may be able to apply to the court for short-term rights to stay in certain circumstances. In these situations, it is worth seeking advice from an advisor such as Citizen’s Advice or a solicitor.
If you are married, both you and your spouse have the right to live in the matrimonial home, regardless of whose name the tenancy agreement or mortgage is under. If you separate, then you will need to decide who will be staying or whether you will both leave the property and sell it. If you can’t come to a decision about this, then this can be decided by a judge during your divorce proceedings.
It is advisable to live together as ‘joint tenants’ as this gives both you and your partner equal rights and responsibilities should the relationship break down or one of you dies.
Get advice about your legal rights
The legal rights and responsibilities of couples who are married or cohabiting are complex and depend on a variety of factors. At Preston Redman, we understand that every relationship is different and each case must be considered individually and so we do not adopt a one-size-fits-all approach. If you need advice on where you stand with your legal rights, then get in touch with Tim Flower today by calling 01202 292 424.