Cohabitation is an area of law that is often misunderstood and often cohabitants, or partners that live together only realise the pitfalls and problems that can occur when a relationship breaks down or a partner dies and they discover that they do not have the rights that they had believed whilst they were cohabiting or living with their partner. Therefore if you are considering moving in with your partner it is well worth taking legal advise to ensure that you have consider:
- Consider the evidence
- Consider the law to which the problem is subject and what the law says about problems of this nature
- Decide whether the claim brought is justified
In order to advise we will need various details to get a better idea of your circumstances which will include:
- Details of the length of the relationship
- An accurate description of the assets held by both yourself and your partner and their values
- Details of any properties owned such as the value and whose name it is registered in and contributions made to the value of the home including work on the property
- Yours and your partner’s earnings
- Whether or not there are any children
There are various key areas of law which need to be considered.
HOME OWNERSHIP
If you move in with someone and the house it not in joint names, or is in their sole name, then you will not usually have any right to the proceeds unless it can be proved that you contributed to the deposit for the house or the mortgage payments or paid for or did major work to the house.
If the house is not in both names, you have no automatic right to inherit the house f your partner dies unless they have made a will expressly leaving it to you. If there is no will you may be able to make a claim against your partner’s estate through the courts on the grounds that they maintained you during their lifetime by providing you with a home
It might be worth considering transferring the property from your partner’s names into joint names to be either as either “joint tenants” or “tenants in common”. If the property is held by you both as joint tenants with your partner, whilst technically there is no definable share, there is usually a presumption of equality and that it is held as 50/50 if you sell the property. And in the event of one of your dying, the surviving partner would automatically inherit the property regardless of what is set out in your wills.
However, if you own the property as tenants in common your only right it to your own share of the property and you can formally agree who owns what proportion of the property by having a deed of trust drawn up. If you want to leave your share to your partner under these circumstances, you will need to set it out in a Will
RENTING A PROPERTY
In order to ensure that you have rights top a rental property you should consider having the tenancy agreement in both your names.
CHILDREN
It is very important to consider the right of both partner to the children and the children’s right to both parents in situation where the parents are unmarried and co-habitation. IN situations where the parents are unmarried only the mother of the children has automatic parental responsibility and the legal right to make decisions regarding the child’s development and future.
There are a number of ways that the father of children of unmarried parents can go about gaining parental responsibility for the children of the relationship and that it by entering into a written agreement whereby the mother grants parental responsibility to the father in order that they can share it. This could be important for making decisions about their children’s future if you and your partner decide to separate.
For children whose births were registered after 1st December 2003, there was a change in the law which stated that if both parents jointly registered the birth the father would obtain parental responsibility regardless as to the marital status of the parents. However, this was not backdated and for children of unmarried parents whose birth was registered before 1st December 2003, the father does not have automatic parental responsibility.
If your partner has children form a previous relationship you have no parental responsibility for them at all.
NEXT OF KIN STATUS
Should your partner become seriously ill or die, as cohabiting partners you may not be considered to be next-of kin for medical purposes unless you and your partner make a written agreement beforehand.
BANKING
If you and your partner have separate bank accounts, you cannot have access to money in your partner’s accounts. If you partner dies, the money in their account will fall into their estate and will pass by will, if there is one, or the rules of intestacy if your partner hasn’t left a will. Under the rules of intestacy there are no provisions for cohabiting partners to take the benefit of their deceased partners bank accounts of assets and it will pass to their blood relatives. There is also no guarantee that your partner will have bequeathed anything to you in their will and if they haven’t you may be able to make a claim on their estate through the courts.
A solution to this is to have a joint bank account which will pass to the surviving partner automatically upon the death of the first partner.
TAX STATUS
You and your partner will not have the same tax advantages as a married couple and any transfers of property or other assets between you may attract Capital Gains Tax and inheritance tax liabilities and you may have to pay tax if you want to give major assets to your partner.
PENSION SCHEMES
If you die, your state pension is not automatically passed on to your partner. Different rules apply to occupational and private pensions and you will need to consult the rules of the individual schemes to see what the rights are, if any, under each scheme and have your solicitor advise you on the potential repercussions. This will enable you to take advice on the level of pension cover both yourself and your partner will have.
MAKING A WILL
You should consider this to ensure that your partner would benefit from your estate in the way that you intend them to in the event of your death as they will have no automatic right to a share of your assets without one.
This is necessary if you want your partner or their children to inherit from you.
COHABITATION CONTRACTS
This is a way of securing a cohabiting couple’s financial and other arrangements and set out in advance what each couple expects of the other during the period of cohabitation and the arrangements between them in the event that the relationship breaks down or one of you dies. They are not wholly enforceable by the courts but they do serve to limit disagreements and provide a framework and procedure in the event of a breakdown in the relationship and peace of mind for both partners.
DISAGREEMENTS
It is advisable to have your arrangements in place before there is a disagreement or the failure of the relationship. However it is still possibly at this point with the knowledge and experience of your solicitor to protect your interest. This can encompass anything form custody battles to a advising you of your rights and assisting you in coming to an agreement on the division of assets. We are dedicated to finding the best solution for you that the Law will allow.