Many people think that the law is the same for couples who are married or have undergone a civil partnership and those who are living together without any legal partnership agreements in place. This is not the case. In England and Wales, the law can treat married couples or civil partners very differently to their common-law counterparts. In other words, those whose living arrangements are colloquially known as cohabitation law.
As a general rule, cohabitation law does not provide common-law partners with as many legal rights and protections as marriage or civil partnerships. This means that there are several areas of life for cohabiting couples that need especially careful consideration and planning. These include establishing both partners’ rights and obligations, managing joint property, assets and finances and agreeing on how to raise and care for any children or dependents involved. Although no-one wants to think about it, it is also prudent to think about how to handle things calmly and fairly, should the couple decide to separate.
Cohabitation law: contracts, asset agreements and parting ways
Common-law partners can draw up a contract as part of cohabitation law. This type of document sets out the expectations, obligations and rights of both parties and can be useful in the event of a dispute or split. You can also draft a declaration of trust document to sit alongside your cohabitation law contract. This deals specifically with how assets and property are to be divided and/or disposed of if the partnership breaks down irretrievably.
Common-law partners are able to separate informally without the need for a formal divorce or intervention from a court, unlike married couples or civil partners. However, a court can still intervene when it comes to safeguarding the future and ongoing care of any children involved in a common-law union.
Finance, banking and cohabitation law
Many couples, whether they are married or not, choose to keep separate bank accounts and finances. This can be beneficial if conflict arises, as both parties know exactly what they own and what debts they have to their name. Other couples combine everything into one or more joint bank accounts, from which all living expenses are funded. Either way, it is vital to agree on how bills are covered and assets paid for. In other words, who pays for what, and how should any income be handled?
Some couples choose to divide outgoing payments firmly down the middle, while others may need to take differing income levels into account. When one person is unable to work, for example due to raising children or other caring duties, they may need extra support from their partner in covering their share of the bills. These arrangements should be carefully discussed and agreed between the couple and reviewed regularly to ensure they are working as intended.
Wills and dealing with assets after death
One big difference when it comes to cohabitation law as opposed to married couples and civil partners is how money, property and assets are handled after the death of one party. A surviving husband, wife or civil partner has the legal right to inherit part or all their spouse’s estate, regardless of whether they left a Will or not. Depending on family circumstances, the surviving spouse or civil partner of someone who dies intestate (without a Will) can either inherit the entire estate, or be obliged to share it with children, siblings and other family members.
However, a common-law partner does not have any automatic right to their partner’s estate at all if they die intestate. This means that they could end up with nothing if their deceased partner has not specified what they want to happen to their estate in their Will. This is why it is very important for couples whose living arrangements fall under ‘cohabitation law’ to write Wills stating their instructions for after their death.
Children and other dependents
When children are raised in a cohabitation law household, they are entitled to exactly the same rights to a safe, nurturing and happy childhood as any other young people. However, there are, once again, differences when compared to married parents and civil partners. For example, a common-law father may need to prove paternity in order to secure parental rights. He is not entitled to register the birth of a child without the mother being present.
All parents are legally obliged to provide for their children, whether they are still together in a partnership of any kind or have separated. The amount and type of support can be agreed by a court. In order to plan for the possibility of either or both parents dying before their children reach adulthood, all types of partners can appoint one or more guardians to care for them in their place. All couples can also apply jointly or separately to adopt or foster children, regardless of their marital status.