What constitutes cohabitation
Cohabitation generally means living together as a couple. When people decide to live together, they do not automatically qualify for the same protection under the law as married people or people in a civil partnership. This includes so-called common law wives and husbands. When a relationship between two cohabiting people ends, there are numerous legal issues that can affect what happens next.
Cohabitation/living together agreements
People who decide to live together can make a cohabitation contract/living together agreement to outline their obligations and rights in various circumstances. Although such an agreement can be useful, they are not always legally binding. Promises made in a cohabitation/living together agreement can be made legally binding. In a few areas, cohabiting couples have the same rights as married couples, but in most cases they will be treated differently. The best solution to the problem of how to establish legal rights is for the couple to draw up legally enforceable agreements with the aid of a solicitor.
Neither person has any basic rights to their partner’s property or maintenance. What happens to the home when a relationship breaks up depends on its ownership.
If the house was held as a ‘joint tenancy’ by the couple:
They will both hold an equal share in the home;
Neither person is able to take the other person’s share as long as the joint tenancy exists;
If one person dies, the other person will automatically inherit the whole property;
It is not possible for a person to will the property to another person unless both partners agree;
If the house was held as a ‘tenancy in common’:
It will be held in shares agreed upon when the property is bought. One person might own 75% of the property and the other person 25% of the property, for instance;
If the shares are not stated, the law will usually say that the shares are equal;
If one person dies, their share in the property will be passed on according to their will or, in the event that there is no will, it will pass on to their next of kin.
If the house was rented and the tenancy agreement names both people, then they are both responsible for the rent. If one person fails to pay the rent, the other person is liable. If both people are on the tenancy agreement, then they both have the right to stay in the house if the relationship breaks up. If only one person is named on the tenancy agreement, they can make the unnamed person leave unless they can establish ‘right of occupation’ in court.
If one person moved into the other person’s house, they do not automatically get any rights to the home. If the house is sold, the person who moved in will have no right to prevent the sale or stay living in the property. It is possible for the person to gain rights to the house if both people agree to share the ownership.
Tenancy can be contested in court. If one person contributed significantly to the property than the other (for example by making mortgage payments), it is possible in some cases for them to win rights to the property. If a person has children, they may be able to ask a court to transfer the ownership of a property if it is considered by the court to be in the best interests of the children.
Neither person will have any rights to the other person’s finances unless they have a joint account. If they have a joint account, then the money will belong to both people, but if one person didn’t use the account at all, it will be hard for them to claim any right to it.
Neither person is liable for any debts in the other person’s name. If the debts are under both names or if a person is acting as guarantor on the person’s debt, then they are liable. In some circumstances, both partners will be responsible for a debt, such as in the case of council tax, for instance.
Possessions owned by a person before the relationship will continue to be theirs and the person who bought an object will be its owner. Things bought from a joint account will belong to both people and things given as a gift to the other person will be owned by the recipient, but this can be exceedingly hard to prove.
Death and inheritance
If one person in a relationship dies without leaving a will, the surviving person will not inherit anything automatically except the property if it is held jointly. However, if the death of one person means that the other person does not have enough to live on, the surviving partner might be able to go to court and win the right to claim from the estate. If a will has been made, a person will still have to pay inheritance tax, unlike a married partner.
Unmarried people are taxed separately.
Can a partner qualify as next of kin?
In some circumstances they can. When a person goes into hospital, they may be asked to name their next of kin and most hospitals will accept the name of an unmarried partner as next of kin. If they don’t accept this, it is difficult to force them. The same applies for some other organisations, including prisons.
Any couple living together can adopt children, though the process will be more difficult than if they were actually married. For gay or lesbian adoption, see below.
What will happen to any children if the relationship ends?
A male partner is not automatically assumed to be the father of his child and the mother will get sole responsibility for the child except when:
The father becomes the child’s legal guardian;
A formal agreement was made between the parents outlining the father’s rights to the child. This usually takes the form of a parental responsibility agreement;
A court orders in favour of the father to give him responsibility for the child; or
The birth of the child is jointly registered with the father.
If a parent appeals to a court to decide access to their children, they will normally be given access, but there are exceptional cases where this may not happen.
Both parents are responsible for supporting a child financially. The father is responsible even when he doesn’t live with the mother and is not named on the child’s birth certificate. This means that the father can be made to pay maintenance.
The child of unmarried parents has the same legal rights as the child of married parents when it comes to inheritance. Both have the right to inherit from both parents and their families.
Qualifying for legal aid
When a person is assessed for legal aid, the other person’s income and assets will be considered unless:
they live apart and at least one person believes the relationship to have broken up; or
there is a conflict of interest between the two people.
Gay or Lesbian cohabitation
If a gay or lesbian couple are living together but have not registered a civil partnership they will not have all the same rights as a couple registered as being in a civil partnership. As with cohabiting heterosexual couples, a living together agreement/cohabitation agreement will have to be agreed upon.
If a cohabitation agreement has been made between a same-sex couple, they can adopt children just as they would be able to if they had entered into a civil partnership, although the process will probably take longer.
Cohabitation and student finances
A person’s eligibility for a student grant will be dependent on their partner’s income when they live together. The partner’s income does not affect the person’s entitlement to a student loan.
A person living with a partner will be assessed in the same way irrespective of marital status. They will be expected to claim as a couple.