The rights (and wrongs) of cohabiting couples
08 December 2009
The rights (and wrongs) of cohabiting couples
Brachers LLP family team specialise in advising couples on the rights of ‘cohabitants’, unmarried couples who live together and it is an area in which we have a lot of experience. Cohabitants ignore this article at your peril!
We advise clients who want to begin living together but do not wish to marry as to what they need to do to protect their assets and also in advising people wanting to separate from their partner and divide any assets or make provision for their children.
The issue of rights of unmarried couples living together has been given more attention and press coverage in recent years but according to a survey conducted by Advice Now 61% of people think that if you live together for a long period of time you gain the same rights as you would if you were married to your partner.
This is absolutely not the case and therefore anyone cohabiting with their partner who is not married should take legal advice from Brachers’ family team. Stephen Smith, head of the family team, says “it is incredible how differently the law treats married people compared to couples who cohabit with one another.”
In contrast with married people who often have to continue to support each other financially even after separation, this is not the case with cohabiting couples. This means:
• There is no equivalent of “spousal maintenance” for unmarried couples.
• Even if an unmarried mother has stopped working to look after her child, she will not be entitled to any maintenance for herself from the father (although she can claim maintenance for the child).
• If couples separate and only one party owns the home, the other party will have no automatic right to stay in the shared home.
Things are also different on death. If you are not married and you have not made a Will, on your death all of your estate will go to your nearest blood relations. No automatic provision will be made for your partner regardless of how long you have been together.
On 29th October the Law Commission put forward proposals to change the situation for cohabitants on death. The Law Commission is an independent body which seeks to keep all law under review. It has suggested:
• that cohabitants who have lived together for more than five years could be given the same rights on death as married couples.
• Therefore if an unmarried partner had not made a Will, his estate would automatically pass to his partner if they had been cohabiting for five years.
• If the couple have children, the minimum qualifying period in cohabitation cases would drop to two years.
• If the couple had not been living together for two years then the normal intestacy rules would apply.
A report and draft bill is expected on this matter in late 2011. Most commentators are however critical that these proposed reforms do not go far enough to give cohabitants greater recognition and rights, particularly because they do not address the situation in life. Jo Coleman, paralegal in the team said “if the proposed reforms go ahead then cohabitants will be left in the bizarre situation that if their relationship breaks down in life then it is not possible to claim on the other person’s assets but if the relationship ends because of death then it would be possible to claim. The preferred option for separation would therefore be the death of your partner. Perhaps often this is the case anyway.”
In light of these difficulties it is essential to see a member of the Brachers family team who can help you both before you move in together and if you decide to separate.
Before you move in together a member of our experienced team can help you to draw up a Cohabitation Agreement. In this you can set out what would happen if you were to separate. Although this sounds extremely pessimistic, it can be very constructive. In particular, it can iron out difficulties while you are together, such as who pays for what. It also gives reassurance to know what will happen if you do separate, and it is much easier to agree who contributed what to the household when the parties are getting on with each other.
If you do decide to separate our team can advise on dividing up any joint assets and how to make provision for any children.
Although it is hard to consider planning for events that you hope will never happen, it is essential to seek legal advice. It can save a lot of heartache and hurt feelings in the future.
Family Team
Brachers LLP
www.brachers.co.uk
01622 690691
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