Cohabitation Agreements

Despite the ‘common law’ marriage myth, it is possible to live with your partner and have children together and then walk away without taking any financial responsibility for each other. In many cases, this creates financial hardship for families who live together and are not married.

We advise you to consult our family solicitors at an early stage so we can help protect you, your property and your family before or whilst living together. We can draw up a legal agreement called a Living Together Agreement or a Cohabitation Agreement, to formalise aspects of your relationship.

There are some things you might like to consider if you are living together:

Banking

If you have separate bank accounts and one of you dies then the money in that account becomes part of your deceased partner’s estate and cannot be used until the estate is settled, even if the money is yours to inherit as part of your partner’s will.

If you have a joint account, then if one of you dies, the other has complete access to it. On the other hand, if you separate then you need to be careful that the other partner does not access the funds or run up an overdraft on the account for which you will be liable.

Do you have parental responsibility?

If you are living together and have children then you have parental responsibility if:

• You are the child’s birth mother
• You are the child’s father and your name is on the child’s birth certificate (for births registered after 1/12/03)
• You subsequently marry the child’s mother
• You enter into a Parental Responsibility Agreement
• You get a Parental Responsibility Order from the court

Child Contact and Financial Support

If you separate you can make an informal arrangement between yourselves for contact with the children. If you can’t reach an agreement, then you can apply to the court for a child arrangements order but you would usually be required to attempt mediation with a family mediator before issuing court proceedings in the hope that an agreement can be reached unless there is a very good reason not to attend mediation.

As parents you are both financially responsible for supporting your children, whether you are married, in a civil partnership, living together or separated. As a father you have financial responsibilities even if you are not named on the child’s birth certificate; the same is true if you are a mother and if your child lives with their father.

Death and Inheritance

If your partner does not have a will and dies before you, the surviving partner will not automatically inherit anything, apart from a property owned as beneficial joint tenants. Each partner has to make a will if they want the other partner to inherit anything. If you do inherit property or money then, unlike with married couples, you will not be exempt from inheritance tax, assuming that the value of your estate exceeds the inheritance tax threshold.

If your partner dies with debts in their name only then you have no liability for those debts unless you acted as guarantor. You may be responsible for debts in joint names.

Property

If you are the unmarried partner of a tenant then you normally have no rights to stay in the property if the tenant asks you to leave, so joint tenancy is usually preferable.

If you are unmarried and own a home, then things can get complicated. If you are the sole owner then you have the right to stay in the home, although your partner might be able to claim a ‘beneficial interest’.

If you own a property jointly, there are two different ways of holding that property. These are Beneficial Joint Tenants or Tenants in Common.

• Beneficial Joint Tenants – The most common but not necessarily the most advisable is to hold the property as beneficial joint tenants. You are each deemed to have a 50% share of the property. The effect of this is that if you die your partner will inherit your share of the property and will retain their own share.
• Tenants in Common – This option allows you to either hold the property in equal or unequal shares. This may be a suitable arrangement if one of you is investing more money in a property than the other. This is an important consideration should you subsequently separate. If you hold a property as tenants in common, if one of you dies then the deceased person’s share of the property does not pass to the surviving partner. We advise speaking to one of our wills specialists to gain maximum benefits of this agreement.

If you have dependent children living in the property, then there are further complications, as in some circumstances it is possible to delay the sale of a property.

Next of Kin

Unlike a married couple, if you are living together, you will not automatically be recognised as next of kin – it all depends on the organisation you are dealing with, such as a hospital or insurance company.

You may decide that you wish to make a will to protect your co-habitee.

Informational Booklets

We understand the challenges involved in navigating the intricacies of Cohabitation Agreements. To assist you, our team has developed several booklets designed to provide guidance. You can access and download these informative booklets by visiting our dedicated webpage for Informational Booklets.

We can help you with any of the following: