Cohabitation of unmarried couples is increasingly common across all age categories, currently figures have risen to 24.3 per cent of all people are now living with a partner unmarried.
With this trend looking set to continue, it’s essential to understand the legal rights and protections that apply to such arrangements, especially where cohabiting couples face fewer protections than couples who are married or in a civil partnership.
Unlike married couples, cohabiting partners often find themselves in a legal grey area because the relationship is not legally recognised as official.
Karen Bishop, our Head of Family Law, will take a look at how cohabiting couples can understand their rights.
The legal landscape for cohabiting couples
In many cases, unmarried cohabiting couples do not have the same rights and legal benefits and protections as married couples.
This is particularly true for situations where a spouse would have automatic rights to make decisions on your behalf, such as if you lose capacity through ill health.
Cohabiting couples should be aware of the rights that they may not have under their current arrangement. If you’re in a long-term relationship and intend to have the other person make legal decisions for you, you should first check that they will be permitted to do so.
For example, unmarried cohabiting couples do not automatically receive:
- The right to inherit: without a Will, a surviving cohabitant has no automatic right to inherit any property or assets of the deceased, and assets will pass to a living child, grandchild, parent or other relative.
- Exemption from Inheritance Tax (IHT): assets passed on to a spouse or civil partner are exempt from IHT, but not if they are passed to an unmarried partner. You also cannot combine unused exemption to pass on assets to, say, a child.
- Pension benefits: many pension schemes only pay out survivor benefits to a legal spouse or civil partner.
- Financial support on separation: on separation, there is no obligation for one partner to support the other financially, unlike in divorce proceedings.
In the UK, there is no such thing as a ‘common-law marriage’, a fact often misunderstood, leaving many cohabitants unprotected and vulnerable in the event of a partner’s death or separation.
Property ownership
Under a cohabitation arrangement, if one partner dies, property will not automatically pass to the surviving partner – unless it is jointly owned.
However, the degree of control the surviving partner has over the property depends on how the home is owned. There are two primary ways to own property jointly: as ‘joint tenants’ or as ‘tenants in common’.
- Joint Tenants: In this arrangement, both partners own the entire property together. If one partner dies, the other automatically inherits the other’s share, regardless of any Will. This is known as the right of survivorship.
- Tenants in Common: Each partner owns a specified share of the property, which can be equal or unequal. Upon the death of one partner, their share does not automatically transfer to the surviving partner unless specified in a Will, but the surviving partner retains their own share in the property.
For cohabiting couples, being joint tenants offers more security in the event that one partner passes away. Under a ‘tenants in common’ arrangement, if the deceased partner’s share in the property was larger than the surviving partner’s, it could put the surviving partner in a precarious living situation when their partner’s share in the property is passed on to a relative.
Protecting inheritance
The importance of having a Will cannot be overstated for cohabiting couples.
A Will is a legally binding document that allows the deceased partner to pass on assets, including money, property, belonging and shares/investments, to whoever they like, regardless of whether they are legally related or married to the beneficiary.
If you cohabit with a partner, you should regularly review your Will to ensure that all relevant assets are expressly left to your partner.
Without a Will, the intestacy rules apply, which often do not favour the surviving cohabitant.
A cohabitation agreement
In addition to a Will, cohabiting couples can further protect their interests through a Cohabitation Agreement.
This legal document can outline arrangements for property, finances, and children, providing clarity and protection for both parties in the event of a separation or death.
Based in contract law, this type of agreement can be taken to Court if one party breaches the contract. It can also be relied upon as further evidence of intentions regarding a deceased partner’s estate and support the rights of the surviving partner.
Seeking support
For cohabiting couples, understanding their legal position and taking proactive steps to protect their rights is vital.
This includes considering how property is owned, creating a Will, and possibly drafting a Cohabitation Agreement.
The legal framework surrounding cohabitation is nuanced and complex, often requiring professional legal advice to navigate effectively.
For further advice on your rights as a cohabiting couple, please contact us and speak to a member of our Family Law team today.