In the second part of this article, our team looks at the key legal and financial position of couples who do not enter into marriage or civil partnerships, and discusses whether you have fewer rights if you're living together.

Contrary to popular belief there is no such thing as a ‘common law’ husband and wife. However long you have been together, an unmarried couple receive hardly any rights compared with married couples or civil partners in the eyes of the law. As around 4 million people in UK today are choosing to live together, sharing homes and in many cases raising children together as a family, it is important to be aware of the areas where the law differs.

Unfortunately, it is often the case that a large number of couples only find out about their lack of legal standing when it is too late – often when their relationship has come to an end. It is therefore important to take measures to protect yourself and your partner in key areas including pensions, co-habitation agreements and rights on death or mental incapacity.

Property Owners and Occupiers

Understanding the types of ownership available and the implications is important in order to decide which method of ownership is most suitable.  If you own your home together as joint tenants then on death your home will automatically pass to the surviving co-owner regardless of your relationship, and then in accordance with the survivor’s Will.  If you own your home as tenants-in-common then your respective shares will not automatically pass to the surviving co-owner, but in accordance with your Wills, or the laws of intestacy if you do not leave a valid Will.

If your home is owned solely by one partner but the intention is for the non-owning partner to continue to live in the property after the owners death, then provision must be made in a Will. This is also the case if you own as tenants-in-common but wish for your surviving partner to continue to live in your home, although your partner will not inherit your half share. You will need to think carefully about whether the right to continue to live in the property is for life, is conditional upon certain events, or whether a flexible and tax favorable arrangement is more appropriate.

Relationship Breakdown

If you are married or in a civil partnership and your relationship breaks down you don’t have to leave your home unless a court order is made asking you to do so. If you are not married or in a civil partnership, you should seek advice on your rights.

If there are children involved, the court has the powers, as part of an overall settlement, to order a transfer of the property to your name in order to secure accommodation for them. This is often done for a limited time - usually until the youngest child has turned 18.

If you are not married or in a civil partnership and you live together, but your partner is the sole owner of your property, you may have no rights to stay in your home if your relationship breaks down and your partner asks you to leave although, if you have children,  you may be able to ask the court to transfer the property into your name as part of an overall settlement in order to secure accommodation for them, during the children’s minority. The Court also has the power to order a lump sum payment to buy a property for the children  in live in during their minority.

If you do not have children, but have proof that you made regular financial contributions (e.g. making mortgage repayments), you may be able to stop your ex-partner from selling the property, or you may have a claim for an interest in the property.

Top Tips

  • Renting a new home - Think about putting both names on the tenancy
  • Buying a new home - Spend time together thinking about the ownership arrangements. The choice of either owning it together or in one person’s name will make a big difference to your rights
  • Make a Living together agreement - Make a Living Together Agreement (also know as a Cohabitation agreement). This agreement can help you to see what each person will contribute financially. This means, in the event that your relationship ever came to an end, it can help to make sure that this process is as fair as possible
  • Create a Declaration of Trust  - If you intend to own your home as tenants-in-common and you are making unequal financial contributions towards the purchase price, then such a deed is advisable as it will clearly set out your respective interest in the proceeds of sale

Non-financial matters

Despite the widespread use of the phrase, ‘next of kin’ is not defined by the law. Therefore, there is no reason that your partner shouldn’t be treated as your ‘next of kin’ despite the fact that you are not married. However, in practice hospitals have generally recognised spouses and close blood relatives as next of kin and have sometimes excluded cohabiting partners.

The policy in most NHS trusts is to ask you to nominate your next of kin formally on your admission to hospital.  However if you are unable to do so because you are unconscious, they will try to work out who is the person closest to you, but they may get this wrong.  You may, therefore, want to consider making a Health and Welfare Lasting Power of Attorney appointing your partner as your attorney, or one of your attorneys.  This will give your partner the authority to make decisions about your health care needs when you are unable to make those decision for yourself.  Alternatively you may prefer to make an Advanced Decision (formerly known as a Living Will) refusing life-sustaining treatment.

Upon death, the decision regarding the disposal of your body rests with your executors not your “next of kin”. If you have strong views or feel that your partner may be excluded from such arrangements then you should either prepare a Will appointing your partner as one of your executors, or consider a Funeral Plan.

Top Tips

  • Compete a Next of Kin Card - Consider completing and carrying in your purse/wallet a Next of Kin Card
  • Make a note of your wishes  -Put a note of your wishes ref your funeral etc  with your Will.

Is the law going to change?

The Law Commission was asked to investigate whether the law needed to be changed to give cohabiting couples more rights when thier relationship ends, or when one partner dies without leaving a Will. They very sensibly concluded that it did - but it is unlikely to happen in the near future.

To read the first half of this article – covering topics including Pensions, Inheritance Tax and Planning, and Mental Capacity, please click here.