Recent statistics have revealed that the popularity of couples living together outside marriage continues. What has not changed much, however, is the legal position of each of the parties during the relationship or if it breaks down.
Children of a cohabiting couple
In this context, 'children' refers to:
- the children of either of the parties (even those by a former, partner provided those children have been treated as though they were children of the cohabiting couple) or
- the children of the parties themselves
Legally, on separation, only the parent who has what is called in law, 'parental responsibility' has an automatic role in important decisions about children, such as their education, healthcare etc.
If the parents of the children are not married, only the mother automatically has parental responsibility. The mother's partner only has parental responsibility if:
- he is named as the father on the birth certificate (for a child born after December 2003)
- he enters into a parental responsibility agreement with the mother, obtains in court a parental responsibility or child arrangements order, or the parties are later married
- he is registered as the child's guardian and all other individuals with parental responsibility have died (including the mother)
If a cohabiting couple separate, it is the interests of the children which will prevail.
- Decisions about who the children should live with and what contact rights the other should have are based on the children's best interests, rather than on who has parental responsibility.
- If the children live with a former partner, the partner with whom they do not predominately live may be required to pay maintenance.
- The same principles apply for stepchildren who have been treated as part of the family and helped to support financially.
- Ideally, childcare arrangements can be agreed between the parents but if agreement proves impossible, either can apply to the court to decide the issues which cannot be resolved.
In effect, therefore, in this area at least, children are treated in the same way as when a married couple divorce.
Death of one of the cohabiting couple
Cohabiting partners have no automatic right to inherit if their partner dies. However, if the survivor is named as a beneficiary in the will of the deceased partner, that survivor will benefit under the will. The inheritance tax exemption (or allowance) which applies to married couples does not cover those who are cohabiting.
Where one of the partners dies and leaves nothing for the survivor, that person can claim against the estate if
- the couple have lived together 'as man and wife' for at least two years, or
- if the survivor was financially dependent on the now deceased partner. However, making a claim on the basis of a common law marriage like this can involve a complex and expensive dispute with the other beneficiaries. Even if successful, the survivor may only be entitled to a share of the partner's assets, depending on the size of the estate.
The family home
If the family home was owned in joint names, the form of legal ownership has a major impact. There are two ways in law in which property can be owned by more than one person. In such cases the owners are known either as joint tenants or tenants in common.
It should be emphasised that the word 'tenants' in this context does not have the same meaning as it does when used in connection with rented property.
Where a property is owned by joint owners as 'joint tenants', the surviving owner will automatically continue to own the (entire) home on the death of the other owner.
If joint owners are described as 'tenants in common', then on the death of one of the owners, the share of that owner passes in accordance with the will or if there is no will, under the rules governing the distribution of an estate under the terms of his or her will.
If the family home was rented, the rights of the survivor to remain depend on the type of tenancy, whose name(s) it is in and the landlord.
State benefits, such as bereavement allowance or a state pension based on the deceased former partner's National Insurance contributions, are not payable to the survivor on the death of one of the cohabiting partners. Whether any entitlement in favour of the surviving partner arises under private pension or life insurance arrangements depends on whether the particular scheme's terms gives rights to a cohabiting partner.
Written agreements can help both parties to understand precisely what their position will be if a separation occurs or even if one of the partners dies.
The very preparation of a cohabitation agreement can help the parties think through some of the key issues in their relationship. Even though not all of the agreement may be legally enforceable – after all, the situation in which each party is living may change, such as the birth of children. Nevertheless, an agreement can help reduce the likelihood of disputes and make any outstanding issues easier to resolve.
An agreement might cover issues such as:
- arrangements covering ownership of the home and what rights each party has to live there
- taking steps to obtain parental responsibility for children
- whether the parties will have any joint bank accounts
- what roles each will have in terms of childcare
- responsibility for household chores and the like
- appointing each other to hold a lasting power of attorney (so that if one party is no longer capable, the other can take decisions on his or her behalf)
- reviewing wills and ensuring that each has each made appropriate provision for the other
- how bills will be shared
- a financial settlement if the relationship breaks down
- checking – and if appropriate, changing – key financial arrangements such as pension schemes, life insurances, savings and investments.
It can be seen that for cohabiting parties who separate, there are many potential areas which are likely to need resolving. Our policy is to explain the legal position and try to help parties come to fair agreements.