At Lupton Fawcett, we understand the difficulties you can face when it comes to property, finances and children if you are cohabitating with a partner, as the law handles these rights differently to married couples. We can provide pragmatic legal advice should you be involved in a dispute as well as guide you through the process of creating a cohabitation agreement quickly and efficiently so you can have peace of mind that your assets are suitably protected.
If you wish to talk to one of our specialist family solicitors about your cohabitation rights, or need help after the breakdown of a relationship, get in touch with our Yorkshire-based team today by calling our Leeds, York or Sheffield offices on 0333 323 5292, by sending us an email or by filling out the enquiry form on this page and letting us know a suitable time to call you back.
What is a Cohabitation Agreement?
A cohabitation agreement can protect you if a relationship breaks down or your partner dies. Although they are not legally enforceable, they can be used to resolve disputes quickly and efficiently. An agreement can cover how some issues should be dealt with, including:
- Home ownership
- Childcare roles
- How bills are shared
- Pension schemes
- Life insurance
- Joint account conditions
- Power of attorney
If you are unmarried, living with a partner and they die, then you have no automatic right to anything of theirs, according to current UK law. This includes state bereavement benefit and pension additions based on your partner’s National Insurance contributions. The only way you will inherit anything is if they have you as a named person in their will, although any assets you receive may require inheritance tax to be paid.
In some instances, a financial settlement can be claimed if you are not a beneficiary in the will. However, this depends on whether you can prove that you were financially dependent on your partner or if you have lived together for at least two years. This can be an incredibly complex process, making assistance from a specialist solicitor vital if you stand a chance of claiming a payout.
Our expert solicitors have provided advice to couples facing many types of cohabitation disputes, including property, children, assets and maintenance. We can provide you with advice on how to afford you some protection should your relationship breakdown. We can also prepare a cohabitation agreement for you if you are intending to live with a partner, which sets out what the financial agreement would be should you separate.
To learn more about your rights, click on the relevant topic below:
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.
Your Rights if Children are Involved
If you are not married, but are living together and have children, then legally only the mother has parental responsibility, meaning she can make all the important decisions for any children. This includes deciding which school they will attend and what type of medical treatment they receive when ill.
To get parental responsibility, you must be either be:
- Named as the father on the child’s birth certificate
- Named in a parental responsibility agreement with the mother
- Registered as the child’s guardian with all others who have parental responsibility having passed away, including the mother
- Named in a parental responsibility order
- Named in a child arrangements order if a court has ordered the child is to live with you
- Named in a child arrangements order if a court has ordered the child to spend time with you and exercises a discretion to grant you parental responsibility
Our solicitors will provide assistance and representation should you want to apply for parental responsibility.
If you and your cohabiting partner split up, the law treats children in a similar way to married couples who are getting a divorce. This means where children live depends on their best interests, instead of who has parental responsibility. There is a presumption of shared parenting, although this does not necessarily mean that children are to spend an equal amount of time with each parent. If the children don’t live with you, then you’ll have to pay maintenance to help with their upbringing.
Mediation can be used to decide on matters involving children in a civilised manner, and is usually the preferred method should a relationship break down. However, you can apply to the court should you not be happy with a decision that has been made, or if certain other exemptions apply.
Your Financial Rights
The law does not require you to financially support each other should you decide to live together as a couple, so there is no need to do so should you separate. This means any assets you might possess are still yours when you live with someone as a couple. For example:
- If you owned something before you lived together
- If you buy something while you are cohabiting
- If you receive a gift from your partner – although proof must be given to show that it was a gift
Additionally, if you buy something as a couple, then you own the amount you contributed to the overall cost. For example, if you pay £750 towards a sofa that costs £1000, then you would own 75%. However, if you accrue any debts jointly, you are equally as responsible for the debt, so if your partner fails to meet payments, you could become liable for the remaining amount.
Similar to avoiding disputes with property, a cohabitation agreement is a good way of setting out what you both own, how much each has contributed and what you are entitled to should a relationship end.
Your Property Rights
A common mistake among cohabiting couples is a belief that they have equal rights in the home they share. This can result in problems should only one of you rent or own the property.
If you move into a property rented by your partner, only those named in the tenancy agreement have the legal right to be there, and you can be asked to leave at any point with reasonable notice. If you are not named on the property, you are likely to require consent from the landlord if you wish to move in, or if the named tenant moves out, then you may be able to negotiate a new tenancy agreement with the landlord.
If the home you share is owned by your partner, then, as with a rented property, only they are entitled to live there. The owner is also entitled to make decisions without your consent, such a putting the house up for sale. You may have some rights in certain circumstances, but this depends on a number of factors, including whether or not:
- The owner has agreed in writing to you having a share in the home
- You make contributions to the home – for example, paying part of the mortgage
- You have acted to your own detriment with the understanding that you are entitled to a share in the property – for example, giving up your job
- Your children’s welfare will be jeopardised. To continue living in a property with your children, you must apply to the court
A way of protecting yourself and your rights is by owning a property jointly. However, even if you do own a property together you can still be left disappointed and be required to take legal action in certain scenarios. For example:
- If you decided to leave the property and want to sell the house, you will need to apply for a court order to be able to do so, if your partner does not consent
- If you contributed to the majority of the costs when you were buying the home – unless you have agreed otherwise – you will only be entitled to half
- If your partner leaves the home, then you are likely to be responsible for mortgage payments
What matters will the court take into account in regards to property?
If legal action is required, the court will take the following into consideration when determining whether a person has an interest in land (and to what extent) or whether a property should be sold:
- The intentions of the person or persons who created the trust of land
- The purpose for which the property subject to the trust is held
- The welfare of any child who occupies or might reasonably be expected to occupy any land subject to the trust as his home
- The interests of any secured creditor of any beneficiary
These are the factors which the court will consider as well as the wider factual scenario. The welfare of any children is established as a relevant consideration but no factor carries greater weight than any other.
What if the property is registered in the parties’ joint names?
Where a property has been transferred into joint names after April 1998, the nature and extent of the beneficial interests should be set out in the transfer document (TR1), which provides for an express declaration of the parties interests.
Where the family home is in joint names of a cohabiting couple and both are responsible for the mortgage and where there is no express declaration as to their respective interests in the property, the principles to be applied are:
- They are equal joint owners
- This presumption can be displayed by a different common intention when the property was purchased or at a later stage
- Otherwise, a common intention can be deduced objectively from their conduct
- Where there is no evidence as to their joint intentions at the outset or the intention has changed and it is not possible to determine the new intention, each is entitled to a share the court considers fair having regard to the whole course of dealing with the property
- Each case turns on its own facts
What if the property is registered in the sole name of one of the parties?
Where a property is registered in the name of one party but is occupied by both parties, each party may have made a financial contribution to purchase and/or mortgage costs and bills but with no clear express declaration of trust.
The starting point is different from joint names cases. The court will strive to establish fair shares for the parties, having regard to the whole course of the parties’ dealings with the property.
Where the family home is held in the sole name of one of the parties, the principles the court will consider are:
- Is it intended that the other party has any beneficial interest at all as there is no co-ownership?
- A common intention may be deducted objectively from their conduct. If on the evidence there is a common intention to share, but not as to what shares were intended, the court will have to proceed as follows:
- Each party is entitled to a share the court considers fair having regard to the whole course of dealings with the property
- Each case turns on its own facts
The most effective way of ensuring your interests are protected if you intend to live with your partner is by drafting a cohabitation agreement. Anyone who has an interest in property or land may apply to the court for an order declaring the nature or extent of a person’s interest or a sale of the property or land.
Contact Us for Help
If you would like to draft a cohabitation agreement or a relationship has come to an end and you need legal advice, get in touch with our specialist solicitors today using the details on the enquiry form to find out more.