Just under 250,000 marriages took place in England and Wales in 2021 according to the Office of National Statistics ONS. However, the state of matrimony is not every couple’s first choice. Many prefer, for all kinds of reasons, to cohabit instead. Cohabiting couples currently make up a large proportion of UK families, with more and more people opting for the arrangement over the legal formality of a marriage or civil partnership.
Cohabiting law guidance and advice
Cohabiting couples are not necessarily seen the same way in the eyes of English and Welsh law as their married counterparts. There are several differences, some of which are key when it comes to parenting, property ownership and what happens, should a cohabiting couple decide to part ways.
1. Living Together – and Splitting Up
An unmarried couple can live together in the same way as a married partnership and raise children together. However, if they decide to part ways, there can be a few differences to negotiate. For example, the law works to ensure that there is a fair financial agreement of divorcing married couples, but this is not the case for cohabiting partners. They must make their own arrangements with regard to dividing assets and separating lives.
To help avoid problems with this, cohabiting couples can sign a cohabitation agreement. This document lays out what will happen to property, money and other assets on separation. It can also cover arrangements around children and other dependents and should be drawn up following legal advice to ensure an accurate and fair representation of what both parties agree will happen in the event of a split.
2. Children and Other Dependents
An unmarried father or non-birth parent has no automatic right for their name to go on a child’s birth certificate. Permission must be granted by the biological mother or via a court order. This is not the case for married or civil partners of either sex, who are legally obliged to have their name added to the certificate. Once your name is on the certificate, you acquire parental rights and responsibilities over the child, so this is an important point to consider. It will be far easier later on if you can agree with your partner over how your baby will be registered in advance of their birth.
If cohabiting parents split up, arrangements for the child(ren)’s living will depend largely on who has parental rights and responsibilities. Again, it is wise to draw up a cohabitation agreement in advance to work out what will happen and who will take responsibility for any children or dependents’ future care and upbringing.
This is also the case for agreeing on child support and maintenance payments, as well as taking medical or educational decisions.
3. Property and Tenancy Agreementsnts
While both parties of a married couple normally have the right to remain in a marital home, should they decide to separate, this is not always the case for cohabiting couples. If only one party is written into the tenancy agreement of a rented property, for example, the other one is not legally entitled to stay if the partnership breaks down. In the same way, property that has been solely purchased by one party remains in their possession. However, the other person may be able to claim a ‘beneficial interest’ in it. For example, if they can show that they need to remain in the home for safeguarding reasons, or have contributed a significant amount towards the mortgage.
If, on the other hand, the cohabiting couple has entered into a joint tenancy agreement or tenancy in common on a rented or purchased property, both parties do retain the right to stay or take back what they invested in it. A solicitor will be able to advise further on individual cases.
4. Inheritance and Wills
A common misconception is that an unmarried partner of someone who dies will automatically inherit their estate, even if this is not included in a Will. While property automatically passes between a married couple, cohabiting couples do not have this arrangement in place. If you want your cohabiting partner to inherit your estate if you die before them, you will need to specifically state this wish in a legally recognised and properly signed Will.
If there is no such Will in place, all parts of the estate that are owned in the deceased person’s sole name will fall under intestacy laws. Money, assets and property will pass to the nearest ‘blood’ relative, such as their children, parents or siblings. This could include the home the surviving partner is living in and could cause considerable financial distress if agreements cannot be made. So, it is vital for cohabiting couples to have up-to-date, comprehensive Wills in place stating their wishes clearly and categorically. Speak to a family solicitor to update your Will