Cohabitation is defined as when a couple lives together before they are either married or in a civil partnership. There is a common myth that couples who have lived together for a certain number of years are “common law married” and have equal rights to those who have been legally wed – but this is false. In fact, common law marriage has not been a part of UK law since the Marriage Act 1753. Cohabitation rights differ from the rights of married couples in a number of ways.
It doesn’t matter how long a couple has been together, whether or not they have children, or if they own property together; unmarried couples that cohabit do not have the same rights around finances, property and children as married couples.
Parental Rights
While unmarried mothers automatically have parental responsibility for their children, unmarried fathers do not. They can obtain this responsibility by jointly registering the birth of a child, meaning the father’s name is put down on the birth certificate. When a father has parental responsibility, he can legally have a say in decisions made about the child.
Jointly registering the birth of a child also provides extra security in the case of an unexpected death of a parent. If a father is not registered on the birth certificate, he might not automatically have responsibility for his children if their mother passes away.
Aside from jointly registering the birth, you can also add the father’s name to a birth certificate by:
- completing a statutory declaration of parentage, where one parent completes a statutory declaration of parentage, and the other takes the signed form to register the birth
- going to court – one parent can register the birth, using a court order, to give the father parental responsibility.
If cohabiting parents split up, the father is equally responsible for the financial support of his children even if he is neither living with the mother nor named on the child’s birth certificate, and can be contacted by Child Maintenance Service. Similarly, if the child lives with the father, the mother can be contacted. Both same-sex parents are responsible for financially supporting their children if they are the children’s legal parents and can be contacted for maintenance.
Property Rights
If they split up, cohabiting couples who are not married do not have the same legal rights with regards to property as married couples. Generally speaking, unmarried couples cannot claim ownership of one another’s property if they decide to separate. This includes large assets like houses and cars as well as smaller items like furniture. Gifts made during a relationship remain the property of the recipient.
If you are living with your partner and they are a tenant, but your name is not down on the tenancy agreement, you will usually have no rights to stay in the rented accommodation if your partner asks you to leave. It is therefore advisable for partners who are living together to be joint tenants, sharing equal rights and responsibilities.
Death and Inheritance Rights
Unlike married couples, if you and your partner are not married or in a civil partnership and one of you passes away, the surviving partner will not automatically inherit anything that is not jointly owned. This is why it is incredibly important that unmarried couples make a will to ensure all their final wishes are accurately carried out after they die.
It’s also worth noting that unmarried couples must pay inheritance tax if they inherit money or property from their partner, whereas married couples are exempt from this tax (within the inheritance tax threshold limits).
Cohabitation Agreements
Couples who do cohabit are often advised to make a will and ensure it is kept up to date. It may also be appropriate to get a cohabitation agreement, which can help safeguard your interests. Having a cohabitation agreement can help to protect you and your partner from potential risks if you separate or if one of you dies. This agreement can help you think through key issues and reduce the probability of disputes or make any disagreements easier to resolve.
In the agreement, you can address various financial matters, including what should happen to the house and any assets in joint names.
Get in Touch
At Rothera Bray, our team of family lawyers have the specialist knowledge to advise you on your cohabitation rights, and whether a cohabitation agreement is right for you. We can also provide guidance if you do find yourself in a situation where you and your partner have separated and you believe you may be entitled to an interest in the home you share.
