We explore some of the misconceptions about what rights cohabiting couples have on the breakdown of their relationship or on the death of either partner.
Cohabitation is increasingly common with many couples choosing not to tie the knot. Despite legislation providing rights to cohabitants having been in place for several years, there are still many misconceptions about what rights someone has either on the breakdown of their relationship or on the death of their partner. This blog aims to dispel some of the myths surrounding cohabitation.
First things first. There is no such thing as common law husband and wife. Even if everyone thinks you are married the law will not treat you as being married unless you legally are. A big white dress and cake are optional.
This is important because the rights of cohabitating couples are very different to those of married couples. In a marriage, the matrimonial property is classed as all assets and liabilities that are acquired by either party throughout the duration of their marriage. The matrimonial property is valued at the date of separation and the total matrimonial property should be shared fairly between the couple.
In contrast, a successful cohabitation claim will be based on it being shown that you have suffered an economic disadvantage in the interests of your partner or child and that your partner has been economically advantaged by your contributions.
This can be tricky to quantify. No less so because many couples will pool their finances and will not keep a detailed accounting of their finances throughout their relationship. The courts tend to take a broad brush approach to cohabitation cases (so calculators away on date night!)
A cohabitation claim must be resolved or else an action raised within a period of 12 months from the date of separation. The court has no discretion to allow a claim late and many claims become time barred. This is in stark contrast to separation for married couples which has no time limit. This is sensible given the unregulated and informal way couples often cohabit compared to the formal process required to marry. However, it can lead to people being caught out. Legal advice should be obtained early on to avoid the claim deadline being missed.
A cohabitation claim can only be for a capital sum. Just because you have lived in your partner’s house and contributed towards the household bills for years doesn’t mean that you automatically have a right to a share in it. The court will not grant an order for a transfer of title of a property nor will it grant an order to share in a pension.
Having children will not alter the legal position in relation to cohabitating couples.
Having children will not alter the legal position in relation to cohabiting couples. However, the arrival of a bundle of joy may expand the scope of any potential claim. Economic contributions don’t have to be financial and instead changes in earning capacity or housing needs brought about by bringing up and looking after children could form part of a cohabitation claim.
Married couples have an obligation to financially maintain each other, known as spousal aliment. No such obligation exists between cohabiting couples. Whilst financial dependence could be relevant in a cohabitation claim overall, there will be no weekly or monthly payments required in the meantime.
Married couples benefit from legal and prior rights on the death of their spouse. At present no such right applies to cohabiting couples. If someone in a cohabiting relationship dies with a Will then the provisions therein will apply. If however they die without a Will then the surviving partner will have to apply to the court for financial provision. A claim, which can either be for a capital sum or else for transfer of property, must be made within 6 months of the date of death. Swift action is necessary. The claim cannot be for more than the survivor would receive if they were a spouse. Importantly, if the deceased was still married albeit cohabiting with someone else then the rights of the spouse will take priority over those of the surviving cohabiting partner.
Having an up to date Will is therefore a hugely important and worthwhile step to take.
Having an up to date Will is therefore a hugely important and worthwhile step to take. It will regulate exactly what is to happen to your estate if you die and can include provisions for the future care of children, if appropriate.
It is important to note that the rights created by cohabiting are not the same as those which exist for married couples. By cohabiting, legal rights are created which should be given careful consideration. While cake and confetti can be ignored, the legal provisions for cohabitants cannot. Entering into a Cohabitation Agreement can provide protection and certainty. They are recognised by the court and can save time, stress and considerable expense in the event of a relationship breakdown.
