Guide to living together
It is now increasingly common that people live together, without being married or in a legal civil partnership. Unfortunately, it is still a common held belief that there is such a status as a ‘common law husband’ (or wife) and if the relationship ends or one partner dies, the law will protect them. However, this is wrong. Cohabitees’ relationship with one another is not recognised as having any legal standing, and they have no special status in the eyes of the English legal system. No matter how long the relationship, the law still effectively treats them as separate individuals with no rights or liabilities to each other if the relationship ends.
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.
There are therefore three essential things a couple who are going to live together should do in order to protect themselves:
- make sure the house/tenancy etc is in joint names, in appropriate shares
- set up a simple Cohabitation/Living Together agreement
- make Wills
This will provide ground rules for what should happen if the couple separates or one of them dies.
Buying a Property together
If you buy a house with someone else then it is important to purchase the property in joint names and to decide whether you will own the property as joint tenants, or tenants-in-common. The difference between the two is mainly a difference about what happens if one joint owner dies.
If a property is held as ‘joint tenants’ then when one of the joint owners dies the property belongs automatically to the surviving joint owner. And this will be independent of what the deceased joint owner says he/she wants to happen to the property in a will.
If you decide to hold the property as tenants-in-common, then each owner has a distinct share in the property. It is perfectly possible in such a case for the joint owners to buy the property in their joint names and have a written agreement (trust deed) drawn up which specifies precisely what each joint owner is to receive in the event of a sale of the property. For example, if two friends were buying a property together and one contributed more to the purchase price than the other, this could be reflected in the respective shares of the property, say 75% and 25%. The important point is that each of the tenants-in-common always owns their share of the property, and is only entitled to that percentage of the sale proceeds, if sold during their lifetime. If they die, then their share of the property forms part of their estate. It does not automatically pass to the other owner.
When a property is jointly owned or in the name of one party and the other has contributed to the purchase price and there is a dispute, with no written agreement, the court can decide as to whether or not a property should be sold or retained as a home, particularly if there are children from the relationship. The decisions a court might make in the absence of any written agreement to the contrary might be highly inconvenient and could possibly be considered unfair to one of the joint owners.
This is a highly complex area of the law which has and is changing with recent case law. The burden of proving you have an interest in a property by virtue of your contributions, when it is in your partners’ sole name, is a heavy one and you can spend significant fees trying to establish your case. Similarly if a property is in joint names as joint tenants and you consider you have contributed more than the half share, the onus is on you to prove this. It is imperative therefore, to spend what are fairly minimal fees to set your arrangements up properly at the start and avoid a legal bill which could be over 20 times the cost of the initial set up charges.
A cohabitation agreement is a contract between the two partners in a relationship, which is legally enforceable. To make sure that is in indeed legally enforceable, both parties should consult a solicitor before signing it.
The agreement has two chief purposes:
- To agree day to day issues such as payment of bills, home ownership and ownership of assets
- To make provisions for a breakup by determining entitlement to assets and payment of bills
Things that the agreement should cover are:
- Personal details of the couple
- Property, both joint- and individually-owned
- Debts carried into the relationship and incurred during it
- Arrangements for children, current and future
- Whether the couple intend the agreement to be legally binding
- Who pays which bills (gas, water, electricity, etc)
- Explicitly what should happen were the relationship to end
When one partner dies
The other essential matter for unmarried couples to consider is what might happen when one of them dies. 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 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. Wills are indispensable to co-habiting couples wishing to leave property or other valuables to the other.
There is no duty on one partner to maintain the other and therefore until recently no right of financial maintenance. However since January 1996 a surviving unmarried partner can claim financial provision from a partner’s estate on his death, if they lived together for 2 years before his death. However the formula for calculating the provision is considerably less than for married couples. The children of co-habiting couples may also claim financial maintenance from either parent.
An unmarried father does not have parental responsibility for his children unless he is named on their birth certificate on or after December 1st2003 and was present at the registration of the birth. Where an unmarried father does not have parental responsibility it means the mother can make all the key decisions about the children’s upbringing without having to consult the father.
A co-habiting couple can enter into a Parental Responsibility Agreement to give an unmarried father “parental responsibility” with the mother. This is important as it will enable an unmarried father to apply for residence (to enable his child to live with him) in the event of the mother’s death and give consent to medical treatment.
An unmarried father’s financial obligations to his children are exactly the same as a married father’s obligations.