The trend towards cohabitation, as opposed to marriage, continues to grow. The Office of National Statics (ONS) confirms that it is the fastest-growing family type with 3.5 million people currently cohabiting in England and Wales. However, the rights of cohabiting couples differ considerably from the rights of married couples. The Women and Equalities Committee, the Select Committee that examines the work of the Government Equalities Office (GEO) and the Human Rights Commission has opened an Enquiry in April this year which will look into the rights of cohabiting partners with a view to reconsidering the law in this respect.
Daniel Theron, a partner, commented "the myth of "common-law spouse" still prevails with many people labouring under the misconception that unmarried partners fall into a special category in line with married couples, believing that in the event of separation or bereavement they have the same rights to property and financial assets such as pensions" he further remarked "whilst there are some limited rights they do not equate to those of married couples. Cohabiting couples should take steps to protect their individual positions and those of their children against an unexpected separation or death. Couples should also consider how the property they live in is held, whether joint tenants or tenants in common, there are significant legal ramifications. Joint tenants jointly own the property and tenants in common each owns their specified share of the property"
A cohabiting couple has no automatic rights if they decide to part ways. In the event of death, the surviving partner, even individuals with the decease's children, has no mandatory right to the estate of their partner in the absence of a will. There is an exception to this if the surviving partner was financially dependent on the deceased, it then may be possible to rely on the Provision for Family and Dependants Act 1975 for assistance.
Many men only discover that they do not share parental responsibility for their own children unless they are named on their child's birth certificate until a couple separates or their partner dies. The man then finds that he is not legally entitled to be involved in the upbringing nor can he make any decisions relating to his children. In the event of separation lack of parental responsibility does not remove the responsibility to contribute to the support of their child.
The financial position for a partner of cohabiting couple when they are no longer together is particularly precarious. Whilst a person is only responsible for debt accrued in their own name, in the case of debts in joint names or where debts which are joint and several, such as Council Tax, regardless of whether one partner always paid such a debt, both partners are liable.
The lawyers in Giambrone & Partners' family team explain that there is an answer to avoiding the highly unwelcome situation that cohabiting couples can find themselves in, by the expedient of drafting a cohabitation agreement. A cohabitation agreement will define all the important legal aspects of a relationship and provide a safety net for the financially weaker partner and will define how the key issues will be managed, for example:
- How the rent or mortgage or household bills are paid and by whom
- How joint bank accounts, pensions, property and other assets already owned or bought whilst the couple are living together are dealt with
- Arrangements for children of the relationship in the event of death of their parent
- How and by whom any pets are cared for
- The couple can designate their next of kin and their rights
Each couple's situation will be different and the question of pensions and properties that were already owned by one party prior to the couple cohabiting will need to be dealt with by collaboration with the associated financial organisations. Many people own assets situated overseas, this may require specific clauses geared to the law of the country in which the asset is based.
A cohabitation agreement must be seen to be entered into freely and voluntarily by both parties, there can be no coercion or pressure on either party. It is highly recommended that both parties take independent legal advice to ensure that neither party is under duress and that there is also a comprehensive understanding of the implications of the cohabitation agreement.
A cohabitation agreement takes the form of a deed and both parties must sign it. It can be updated in the event of major life changes. Each party will be provided with their own copy of the cohabitation agreement. It would also be advisable for both parties to draft a will to further support their wishes. This may be important if the couple have overseas assets and wish to override the succession laws in the country their assets is situated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.