Over three million people in the UK currently choose to cohabit, rather than entering into a marriage or civil partnership. While there is no legal definition of cohabitation, it is generally understood as a couple who live together without being married.
Those couples have far fewer rights and protections than their married counterparts. The term ‘common law marriage’ is often used when discussing the rights of partners in cohabiting relationships, however these rights don't exist merely from living together.
Repeated attempts have been made to introduce a cohabitation rights bill in 2014, 2016 and 2017, but a date is yet to be set for the bill’s second reading in Parliament. Until a bill is passed, cohabiting couples must make do with the few protections they currently have.
Legal status of cohabitants
Whilst the rights of cohabiting couples are limited, some aspects of the relationship can be formalised and protected by drawing up of a legal document called a cohabitation contract or a living together agreement. However, it is not guaranteed that a living together agreement will be legally enforceable - the court will scrutinise the facts of the case to determine this.
To strengthen an agreement's validity, a couple must demonstrate that they will be bound by the terms and that they have agreed without the influence of the other or any third parties. They must both also show that they have fully considered the terms and implications of the agreement.
Both parties should seek independent legal advice before signing such an agreement. Cohabitation agreements can also serve as a reminder of a couple’s intentions regarding their assets and estate if the relationship came to an end.
It is also possible to make a series of legally enforceable agreements on specific matters regarding their relationship and assets, for example if the couple jointly own a home, and how the property would be shared.
If there is no cohabitation agreement, and a cohabiting couple split up, anything owned by an individual prior to the relationship will remain theirs. Gifts belong to the recipient, though proof of gifts can be difficult to demonstrate. If one partner gives the other housekeeping money, any property bought with this money will belong to the person who provided the money. Property paid for by a joint account will be owned jointly by the couple.
Children of cohabiting parents
Parental responsibility lasts until a child reaches 18, or in the event that they marry, until the ages of 16-18. Parental responsibility is only granted by default if the individual is:
a) The child’s birth mother
b) The biological father and married to the mother
c) The mother’s civil partner at the time of the child’s birth.
If you are the unmarried father or unmarried female partner of the child’s birth mother, you don't automatically have parental responsibility over the child, even if you all live together. Parental responsibility can be obtained by:
- Registering or re-registering the birth of the child with the mother, if you are the unmarried father.
- Making a parental responsibility agreement with the mother and registering this at court.
- Obtaining a parental responsibility order from the court if the circumstances are not amicable.
- Becoming the child’s guardian in the event of the mother’s death.
- Legally adopting the child.
If a cohabiting couple separate, informal agreements can be made for contact with the child. If this isn't possible, parties can apply to court for a child arrangements order to gain access to the child.
Regardless of living arrangements, both parents are responsible for providing financial support for the child, even if they are not named on the child’s birth certificate.
Unmarried couples don't have a legal responsibility to provide for their partner financially, and voluntary payments to this effect may be difficult to enforce. However, if there are children involved, maintenance payments for the children would still be required according to the Child Maintenance Service scheme.
If an unmarried partner dies without a will, the surviving partner will not automatically inherit anything from their partner’s estate unless assets were owned in joint name. It is recommended that cohabiting couples draw up wills to protect the other party in the event of a partner’s death. If a partner dies without bestowing enough from their estate for the other to live on, the surviving partner may apply to the court to claim from the estate.
An individual is responsible for any debts in their sole name. However, if a partner has applied for any loans on joint name, both parties will have a legal responsibility for it. Likewise, if your partner has a debt for which the other partner is a guarantor, then they will still be liable to pay for it.
The rights of individuals in cohabiting relationships are limited. Until a statute such as a cohabitation rights bill is passed, steps can be taken to protect those in cohabiting relationships through the creation of formal living agreements or cohabitation contracts. This allows for some protection should the relationship end, providing that the documents have been drawn up properly and quality legal advice was sought.
Additionally, it is always recommended that individuals write a will demonstrating their intentions for their estate and property to protect both their partner and their assets in the event of their death.
Rachael Kershaw - Vardags
Published on 28th November 2017