Do Cohabitees Have Rights?

Over 3.5 million couples currently cohabit in England and Wales. Without getting married or entering into civil partnerships. Do they have legal rights, and how can they protect themselves?

Common law marriage

Let us start by busting a myth; the law in England and Wales does not recognise any relationship which is not a marriage or civil partnership, no matter the longevity. So the answer to the question above is, essentially no, cohabitees do not have any automatic legal rights. For example, cohabitees do not automatically:

• have an interest in each other's property;
• inherit each other's property;
• have rights or responsibilities over each other's children;
• have a claim on each other's pensions; or
• qualify for tax relief or exemptions given to spouses or civil partners

Property

Renting a property

If a couple enters a tenancy agreement, they are equally responsible for the rent and other tenancy conditions. If the relationship fails and one party wishes to leave while the other is to remain, the tenancy agreement must change by negotiation with the landlord. There is no obligation for the landlord to do so. If the tenancy agreement is in the name of one of the cohabitees and that party leaves or dies, the remaining partner is not automatically entitled to stay at the property and may be asked to leave by the landlord.

Owning a property

Ownership as tenants in common is often preferred by cohabitees as this can protect an unequal contribution towards the purchase. However, both partners are then legally entitled to their respective shares but not automatically entitled to one another's shares. A court order may be needed to ensure a sale during their lifetime if one partner is reluctant to sell. If the property is in the sole name of one partner, the other does not automatically have a claim to a share in the property in the event the relationship breaks down.

However, establishing a claim may be possible if that partner has contributed significantly to the home through renovations or mortgage payments. The intestacy rules determine what happens to the estate of a person who dies without a will; intestacy favours blood relatives, and cohabitees are not included.

Medical emergencies

Unless each partner has prior written agreements appointing the other as their next of kin, in the event of a medical emergency or death, they will not have automatic rights:

• to know about their partner's condition;
• to see them in the hospital;
• to plan their care; and
• in the event of death, make arrangements for the funeral and associated matters.

Finances and bank accounts

Joint bank accounts will automatically transfer to the surviving partner on death. If each has separate bank accounts, the surviving partner will not legally be able to access the deceased's account.

If one is incapable of managing their affairs, the other partner will not be able to access any accounts unless appointed as a deputy by the Court of Protection.

If a partner can prove financial dependence on the other partner during the relationship, in the event of death it may be possible to claim for provision under the Provision for Family & Dependants Act 1975 .

Children

Parental responsibility for the children of the relationship will fall solely on the mother, unless the cohabiting parent is named on the child's birth certificate. If the relationship breaks up, the non-resident parent is obliged to provide financial support for the child, regardless of whether they have parental responsibility. However, there is no requirement to support the remaining parent. The courts can enforce child support.

Solutions

As can be seen, cohabitees have no automatic legal rights. Therefore, it is essential to ensure that written agreements set out the party's intentions:

• A Declaration of trust setting out how jointly owned property will be dealt with in the event of separation protects cohabitees who own property together.
• A Cohabitation agreement covering joint finances and arrangements for children protects cohabitees living together.
• A Separation agreement setting out the arrangements for finances, children and support following a breakup protects cohabitees who have separated.
• A Will dealing with property, other assets, pensions and children's guardians protects cohabitees on death.
• Lasting powers of attorney giving authority to deal with financial and medical decisions protect cohabitees who lose capacity.