Living Together

Even though a couple may live together for many years as “man and wife” without actually getting married they do not, as the Law currently stands, acquire any special legal rights in relation to each other.

In the course of their relationship an unmarried couple may purchase property together, have children and make wills that benefit one another. However, the Law offers the relationship little recognition or financial protection if, for whatever reason, the relationship ends.

End of the Relationship

When unmarried partners decide to separate the law will treat them as two separate individuals regardless of the length of time they have lived together. Each partner will be entitled to keep the property they brought into the relationship and any money, assets or debts that have been acquired during the relationship will go to the person responsible for acquiring those assets, debts or money.

Specific agreements entered into by the couple will function as a contract but unless there is clear evidence to the contrary the Courts will suppose that it was neither party’s intention to give the other anything as a ‘gift’. Untangling a parting couple’s finances, where no prior agreement has been made, can be a complicated matter.

For more information on Cohabitation Agreements click here.

Death of a Live-in Partner

Whilst it is always important to make a will it is particularly essential that unmarried couples living together do so. An unmarried partner of a person who dies without having made a Will has no automatic right to inherit anything, unlike a surviving husband, wife or civil partner (same-sex partner). This is the situation even if the couple lived together for many years and had children together.

If however, a couple lived together for a period of 2 years immediately prior to the death of one of them, the surviving partner may apply for financial provision from the Estate of the deceased partner. In this situation the unmarried partner need not have been maintained by the deceased immediately before the death but the Court will exercise it’s discretion on the extent of their dependence.

If the couple lived together for less than the 2 years they can only make a claim against the Estate of the deceased if they were being wholly or partly maintained by the deceased immediately before their death.

The Home

The family home will probably be the most important asset and both partners will have to ascertain how much of the property they each own. It is a sensible precaution for an unmarried couple to enter into an agreement prior to purchasing a property jointly. This is something that a solicitor can easily do, would be legally binding and could save dispute and costs in the event of subsequent separation.

Joint Tenancy

If a couple buy a house together in joint names, whether or not they are married, the remaining value of the property after deducting the mortgage etc, is usually divided equally between them if they separate or, if one of them dies, the surviving partner will inherit the whole property. If a couple separate, either one of them can force the sale of the property against the wishes of the other if they choose to do so.

Tenancy-in-Common

A couple may purchase property together in equal or unequal shares, known as ‘tenants-in-common’. A legal document called ‘a declaration of trust’ should be drawn up stating the particular share each has in the home, usually based on the contribution to the purchase price. Should the couple subsequently separate each partner will be entitled to their specified share of the property. If one partner dies the remaining partner will not automatically inherit the other persons share unless the deceased has left it to them in their will.

Sole Ownership

Living in a property owned by just one partner does not give the non-owning partner any entitlement to the property even if they have lived there for some time. It is possible for people who are neither married nor civil partners, to obtain rights in property which is legally owned by their partners, although it is very difficult to establish such rights.

Financial recompense may be claimed for work on the property if that work added value to it or if they have contributed directly to most payments. Also, a person may be entitled to remain living in a property they have no ownership of, if their former partner promised that they would be able to stay there and they gave something up in order to do so because of that promise.

If the relationship ends and the owner of the property would like the former partner to leave the home then they will eventually be obliged to do so. The non-owner is however, protected from being evicted on to the street and in some cases may be able to remain in the property for a limited period to the exclusion of the owner for example, if the owner has been threatening or violent towards them.

If the couple are engaged to be married or about to register a Civil Partnership different rules may apply and they may have special rights with regard to the property should they decide to separate.

Possessions

Items bought from money from a joint account will be owned equally by both parties but all other assets will belong to the person who paid for the item unless it can be proven that it was then given as a gift.

Maintenance

Cohabitees cannot claim maintenance from a former partner and it is expected that, after the division of any property, they go their own way without any financial support from each other.

Children

Where children are involved the rules are slightly different. Although partners are regarded as individuals with no legal duty toward each other, the law is aware that both parents still have a responsibility for their children. It is particularly important that both parents ensure any child is housed and have to decide where and with whom the child is to live. The parent who is given the day to day duties of taking care of the child may therefore have their home provided by their partner until such time the child ceases full time education and becomes an adult. The provider of the home is not obliged to house adult children or the parent in charge of their care.

Although both parents will always share financial responsibility for their child, unmarried fathers have no automatic parental responsibility (the legal right to be involved in making decisions about the child) even though they are usually entitled to contact.

Parental responsibility can be sought by unmarried fathers in any one of the following ways:

• By being included on the birth certificate. (After 1st December 2003 unmarried fathers have automatic parental responsibility)
• Through written agreement between the mother and father in an official form.
• Obtaining a Parental Responsibility Order from the Court.

Unmarried fathers can be included on the birth certificate if they are present and sign the register or if he completes and gives the registrar a statutory declaration acknowledging he is the father or alternatively, if a copy of the written parental agreement is presented at the Registry Office.

It is possible for an unmarried father to register the birth of a child without the mother being present but only if she has made a statutory declaration which acknowledges him to be the father or if he brings a copy of the written parental responsibility agreement.

If separated parents, whether married or unmarried, cannot agree on residence of and/or contact with the child it may be necessary for the courts to intervene. It is only in extraordinary circumstances that a court will refuse to allow the non-resident parent contact with the child.

For more information on Children click here

Unmarried parents should seriously consider the making of Wills and provision for guardianship of any children in the unfortunate event of the death of one or both parents.

Pension and Inheritance Rights

Unmarried partners have no rights under the state pension scheme and often employers who give pensions or death-in-service payments to spouses do not generally recognise live-in partners. Occupational and personal pension schemes will often only be paid to the surviving partner if they were financially dependant on the deceased. It is therefore important for partners to name each other in any policy as the beneficiary.

It is advisable that unmarried partners make a Will if they wish to leave each other their property in the event of their death. Unlike married couples there is no assumption that a deceased partner intended to pass their property on to the person they were living with. Cohabitees are further disadvantaged by not being married because, on the death of one partner, the other will be liable to pay inheritance tax at the rate of 40% on assets over the Inheritance Tax Allowance which is currently £300,000 (2007-08).

Same Sex Couples

Same sex couples have, since 5th December 2005, been able to make their relationship legally recognised by entering into a Civil Partnership. Civil partnership is not an option available to heterosexual couples who must marry in order to legally formalise their relationship.

Civil partnership establishes a number of shared rights and responsibilities within an official legal relationship. Same sex couples who have not registered a civil partnership are governed by the majority of rules that apply to unmarried heterosexual couples and for that reason it is advisable that steps are taken to avoid the problems that may arise if the relationship should end.

For further information on Civil Partnership click here

Protection

Agreements can be drawn up between unmarried couples detailing what will happen to property if they subsequently separate, any such agreements will be legally binding. If buying a house jointly it is particularly advisable to enter into a written agreement detailing who has contributed what and outlining what is to happen should the relationship end. It is simple to do this at the time of the purchase and is a wise precaution.

Unmarried couples should also consider making a Will naming who they wish to benefit in the event of their death. It is important to remember that in the event of the death of one partner the remaining partner will not automatically inherit and therefore the beneficiaries will be their next of kin or ‘blood relatives’.