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Living together

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Quick links          

- Living together agreements
- Cohabitation agreements
- Your property rights

- Your rights in relation to children

- Your rights of inheritance

- Parental Responsibility Agreement


Living Together

With the number of cohabiting couples having nearly doubled since 1996, it is increasingly important to understand the legal framework which may affect your relationship.  A cohabiting couple can be either the same sex or opposite sex couple who are not married and not in a civil partnership.  In this case neither party has any legal status as a ‘common law husband or wife’.  Indeed, such terminology is in fact the non legal jargon of reporters and social analysts.

It is important in these cases that as a cohabitee you understand any financial commitment you make to your partner when cohabiting.  We speak to numerous callers who are about to cohabit with a partner, and those who are cohabiting and wish they were not!  In either case an understanding of the legal context is key to managing ongoing expectations.

In general cohabiting, and not being married can affect:

  • Your property rights
  • Your rights concerning children
  • Your inheritance rights

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Cohabitation Agreements (Living together)

A cohabitation agreement is defined at a form of legal agreement reached between a cohabiting couple who are not married and who wish to sort out their finances in the event the relationship breaks down.  In short it can be seen as a prenuptial agreement without the wedding (nuptials).

The content of the agreement is to cover such things as property, savings, shares and debts.  It may contain reference to already owned assets and who should retain these in the event of a separation.  

Signed by both parties the agreement is designed to prevent arguments and reduce the need to become involved in lengthy and expensive court proceedings. Once signed by both partners, it can constitute a contract provided that it complies with general contract law.

It is possible to buy a cohabitation agreement online and there is usually a modest charge for this.  You may wish to consider taking advice from a lawyer on the contents of this agreement and for your partner to do the same.  Independent advice by you and your partner may be the best way of ensuring that in any dispute the agreement remains valid and enforceable.

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Your property rights

Cohabitees, living together but not being married have particularly complex issues when it comes to property law.  You can live with a partner, family member or just a friend and the law that will apply to you in these cases will be the same based on property law concepts.  It will not be the same rights or experience that married friends or relatives may have.

It is important that when buying or renting that, so far as possible both of you have your names on the deeds or tenancy agreement.  We speak to a large number of people who have 

  • Lived a house belonging to their ex partner, who may also be still living there.
  • Live in a joint property, rented or owned, who want the other party to leave.
  • Bought a property with a friend, relative or partner, fallen out and now wants to sell.
  • Made a contribution to the purchase of a property but have not recorded their share and now want their money back
  • Have lived in a house for a long time which is jointly owned and suddenly, after a lengthy time away the ex wants their share.

Everyone who faces such a situation or similar wants to know ‘where do I stand on that’; it is one of the most frequent questions we are asked.  And it is one of the most difficult to answer as the law can be both complex and vague on these issues.

The fundamental fact is that separating couples do not have any automatic rights to a property share unless they own the property jointly and even then the amounts can sometimes be difficult to ascertain.  If you do not own the property jointly with your partner it is even more difficult as the starting point is no interest at all.  Furthermore you may not even be able to continue to live there!

The only way that a non-owning cohabitee can argue for a share of what is often the family home is by establishing what is known as an ‘equitable interest’ by demonstrating a pattern of behaviour that suggests a common intention. 

In all cases by far the best course of action, when buying a property, is to buy any property jointly.  In doing so any solicitor or conveyancer should discuss the nature of joint ownership, to be joint tenants or tenants in common.

Joint tenants: where both parties own the property in undivided shares and should either party die the survivor will be entitled to the whole property.  This type of ownership accounts for the largest proportion of joint owners and is most common with married couples.  The presumption for this type ownership is that both parties have an equal share in the property.

Tenants in common:  both parties own the property in divided shares and it is most commonly used where owners have made an unequal contribution to the purchase price.  This type of ownership is usually supported by a trust deed which sets out the respective shares such as 60/40 or 70/30, example. 

The most important difference, however, is that should one party die the other does not automatically inherit the share.  Such inheritance rights will depend on the contents of a Will or rights on intestacy. 

It is important in these cases for a trust deed to reflect the agreement for the share of the property that you own when the property is purchased and how any increase in value is then divided.  This document is usually signed at the same time as the property purchase.

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Parental Rights

An unmarried father does not have the same automatic parental rights n relation to his child(ren) as an unmarried mother.  

What are parental rights? Defined in law as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. These are the basic rights required to raise a child and include:

  • The right to decide on day to day care
  • The right to give consent for medical treatment
  • The right to decide on a childs religion.
  • The right to decide where a child lives
  • The right to decide on a childs education,

For over 10 years fathers of children born to unmarried parents have enjoyed equal parental rights to those of the mother provided their name appears on the birth certificate.  For children born before 1st December 2003, and/or whose father is not on the birth certificate, parental rights are not automatic.  In those cases is the mother who automatically has those rights granted by law.

If you are an unmarried father who does not have automatic parental rights there are two ways these can be acquired:

  • By agreement with the child's mother or
  • By application to the court.

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Parental responsibility agreement

You can enter into a parental responsibility agreement using the form here.

As parents you will need to complete the form making sure that your signatures are witnessed.  Then the completed forms must be lodged with the family court.  The process is completed once the High Court has received them.  A stamped copy of the form will be returned to you.

 

Parental responsibility Order

If the mother of your child does not agree to give you parental responsibility it may be necessary to apply to the court for an order to be made.  To do this you will need to complete the necessary form C1 see here.

And pay the necessary fee.  This will need to be done if you wish to make any other application relating to children such as contact or residence.

If you are living in Scotland a different process is required for which more details can be found here.

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Your Inheritance rights

Unmarried partners have not automatic rights to inherit their partners assets if there is no Will entitling them to do so.  The law relating to intestacy (where there is no Will) only recognises a spouse and other family members   Whilst these rules are over 90 years old, and certainly do not reflect how we life now, they none the less remain good law. 

If you live with your partner and he/she dies without leaving a Will:

  • You will not automatically inherit any property or other assets in their sole name.
  • Only automatically inherit property where you are joint tenants although this will include joint bank accounts.
  • You will not automatically inherit their share of a property owned as tenants in common.
  • You may have to make a claim under the Inheritance (Provision for Dependants and Family) Act 1975 to make a claim on the estate.
  • Any children may automatically inherit any assets in preference to any interest you may have or be able to claim.

In these circumstances it is always worth considering making a Will.

 


 

Other areas that may be of interest.

Property Shopping  | Wills Employment Resources