People often refer to couples who live together as common law husband and wife. You may be surprised to know that since the Marriage Act 1763, couples who live together have had no such legal status. If you are cohabiting with a partner, there are certain rights which you do not have but which are afforded to married couples or civil partners. Here are some facts that you may not know.
A cohabiting couple can separate informally without the intervention of a court, whereas a married couple/people in a civil partnership need to apply to court to dissolve the marriage/civil partnership formally. In all cases, however, the court has power to make orders relating to the care of the children.
Upon the breakdown of a relationship, both parents remain responsible for maintaining the children, whether or not the father has parental responsibility.
Parental responsibility means all the rights, duties and obligations to do with children. Parental responsibility rests with the unmarried mother unless:
- The father’s name is registered on the birth certificate (this only applies to children registered on or after 1 December 2003)
- They have made a formal agreement
- The father has obtained a court order for Parental Responsibility or residence
There is no automatic right of the father, unlike in marriage.
Financial provision for the children
The parent with care can apply to the Child Support Agency (CSA) for an assessment and collection of the monies due from the absent parent. It is also possible to make an application under Schedule 1 of the Children Act 1989 for financial provision for a child. The court can make an order for a lump sum or a property transfer order to name but a few powers the court has.
Financially supporting a cohabiting partner is not a legal duty, whereas each married/civil partner has a legal duty to support the other, even after they separate.
The cohabiting partner of a tenant will usually have no rights to stay in the accommodation if the tenant asks them to leave. In a marriage, both partners have the right to live in the matrimonial home, no matter whose name the tenancy agreement is in. The current law in England and Wales does not afford the same protection to unmarried cohabiting couples as it does to married couples, or those who have entered into a civil partnership. Many complicated issues can arise following the breakdown of a relationship especially in relation to ownership of a property. This often leads to disputes and here at Swayne Johnson Solicitors we will consider carefully your individual circumstances and provide advice on the merits or otherwise of pursuing legal action.
Upon death Without a valid Will the surviving partner in a cohabiting partnership will not automatically inherit anything unless the couple owned property jointly.
If you are considering cohabiting with you partner you may wish to enter into a Cohabitation Agreement to record how your assets will be divided upon your separation. A Cohabitation Agreement can record what assets have been brought into the relationship and what contributions each person intends to make. Cohabitation Agreements should be limited to financial matters and should not include details as to domestic life. We can draft and provide advice as to what to include in a Cohabitation Agreement and tailored to your specific circumstances. Such matters may include:
- Ownership of individual assets
- Mortgage contributions
- Payment of household bills
- Bank accounts, whether joint, single or both
- Ownership of joint property, whether joint tenants or tenants in common
- Life insurance and nomination of death in service benefits
- Gifts and inheritances
- Powers of Attorney
- Mutual Wills
If you have been cohabiting and your relationship is at an end then many difficult and emotive matters will need to be resolved. You will need to obtain sensible and in-depth legal advice on a range of issues including property, wills and (if any) children.
Select from one of our Family Law specialists to help you with your legal issue