Avoid the pitfalls when looking to co-habit rather than marry - Shortlands Law Firm

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Avoid the pitfalls when looking to co-habit rather than marry

According to data released by the Office for National Statistics (ONS) co-habiting families are the fastest growing family type in the UK.  According to the data, co-habiting couple families grew by 29.7% between 2004 and 2014.

However, legislation protecting co-habiting couples have not moved with the times.  The Co-Habitation Rights Bill has been in the early stages of passing through Parliament for some time now, but it needs to be made a priority.
The perception of being a “common law partner” or having a “common law marriage” after living together for some time is a myth.  Many partners are not well protected and can be left out in the cold upon a relationship breakdown.

Protecting your rights

  1. Co-Habitation Agreement

This is a document which is similar to a Pre-Nuptial Agreement.  It seeks to set out how assets should be divided and can also set out the care arrangements for any children should the relationship break down.  However, this is not a legally binding document and therefore there is no 100% reassurance in respect of the same.

It is best to seek legal advice from a specialist family lawyer when looking to draft such an agreement so all issues are covered and to ensure that the said document carries heavy weight.

  1. Property Rights

The basic principles governing property rights in the case of co-habiting couples is governed by trust and property law, rather than family law.

The ownership is generally ascertained by looking to the legal title.  Various arguments can be put forward by the partner not on the legal title to claim rights on the property, but it will be difficult to claim 100% of the rights and the onus of proof is on the claimant.  Sound arguments are the monetary contribution made towards any mortgage or significant improvements to the property.  Proof of the said contributions must be shown to ensure any claim on the property.  Payment of bills, food, holidays etc. is not sufficient to justify a claim.

If a co-habitee acts to his/her detriment by placing reliance on a verbal agreement that they will have a claim on any property, then this is an argument that the courts will consider.  However, be prepared for a stressful court case and the risk of losing and then having to pay the other side’s legal costs.

The above does not apply to married couples.  No contribution can justify a claim in a marriage situation.

  1. Children

A mother who is the primary carer of children in a co-habitation relationship has very different rights to that of one who is married in terms of money.  She can claim property and maintenance from her ex-partner, but only for the children involved – not in her own right!  Any property and maintenance given would revert to father upon the child ceasing full-time education.  This would leave the mother homeless at that stage unless she had made provision for herself.  Obviously, the same applies to any fathers who are the primary carers of children.
Fathers whose name is not on the child’s Birth Certificate also do not acquire parental responsibility in a co-habitation relationship automatically.  This means that they do not have the right to be involved in major decisions concerning that child’s upbringing.  Married fathers acquire parental responsibility automatically.

  1. Next of Kin

As a co-habiting couple you are not seen as next of kin in the case of one partner’s death and therefore you do not inherit automatically.  Therefore, it is wise to make a Will to make provision for your loved one.

If you have any comments or queries please do email us at the email address below.

Shabana Walayat
Partner
Shortlands Solicitors
 
sw@shortlands.co.uk
@shortlandslaw