FAQ - Legal rights for unmarried couples
Family solicitor Hollie Knapman discusses legal rights for unmarried couples and how a Cohabitation Agreement can help.
1) What key legal considerations should unmarried couples think about when moving in together?
If you are buying a house with someone, it is important to discuss how you are going to own the property, in what shares and whether you will own it jointly. A key consideration is that most mortgages will require both people who are applying for the mortgage to be on the title of the property.
If you want to own the property in unequal shares, it’s important to look at potentially putting a Declaration of Trust in place alongside a Cohabitation Agreement. If you later separate, it can help with decisions about buying each other out, or what happens to the proceeds of sale, especially if you’ve both contributed to the mortgage equally, but the initial capital contributions were different.
You will also want to consider practical issues of how you are going to meet the household bills and if you should set up a joint account. This can also be incorporated into a Cohabitation Agreement setting out both of your intentions which may become important should you separate later.
2) How do unmarried couples' rights differ from married couples? Does this change after a certain amount of time living together?
Common law marriage does not exist in England and Wales, so you are not “seen as married” after a certain period of time. There are a number of crucial issues that can arise if you are not married.
A big issue can be if one of you dies without a Will (intestate). Regardless of how long you have been together, someone you live with will not be entitled to inherit money or property that you own if you die without a Will.
If you have children together but are not married the father does not automatically get parental responsibility (unless he is registered on the child’s birth certificate). This may mean that the father may not be able to make decisions about their child’s life without making an application to the Court.
If you are living together, you do not have to go through a divorce to separate, but you also are not entitled to the same financial arrangements after you separate for example you are not entitled to any spousal maintenance or pension sharing. Any agreement for maintenance or lump sums would be voluntary and are therefore difficult to enforce. If you have children or property there is action you can take under the Trust of Land and Appointment of Trustees Act 1996 and Schedule 1 Children Act 1989. However, these applications are not straightforward and are very costly if litigated.
3) What is a cohabitation agreement and how can it protect unmarried couples living together?
A cohabitation agreement is an agreement between partners, who live together, which can help define certain issues, meaning there may be less need for expensive litigation should the relationship breakdown. They can cover a number of things and can potentially prevent uncertainty.
They can cover things such as what personal items (cars, jewellery, art work) and financial assets were brought into the relationship, and whether everyone should just leave with what they came with, or whether there should be a different split on the end of the relationship. It gives an element of flexibility about how you organise your individual affairs, knowing what has been discussed before.
Finally it can protect funds brought into a relationship by one party, e.g. where one person’s parents have supplied the deposit for a house. This can be laid out as such at the beginning and that sum retained by the party who provided it. It can also set out practical issues surrounding what happens when the parties separate and who pays the household bills.
4) Should unmarried couples moving in together think about making or updating their Wills?
Yes! No matter how long you have been with someone, unless you are married, that person does not count as a spouse under law. If there is no Will, your money will not go to your partner under the rules of intestacy. If you get married your previous Will is revoked. However, if you move in with a new partner and your Will leave your money and/or property to an ex-partner, that ex-partner may still get the benefit of your Will if you die. Similarly if you are still married when you move in with a new partner your spouse will still receive your monies and/or property (if you are still married at the time of death) if you do not have a Will.
Whilst there are ways to claim against someone’s estate if they do not provide for you, that can involve a lot of expensive and time consuming litigation and there is no guarantee of success.
5) What top legal tips would you give to unmarried couples living together?
· Discuss what you want to happen before it happens and leave yourself enough time. It is unwise to leave little time to discuss such important matters as it will put pressure on your relationship.
· Consider getting legal advice at the earlies opportunity particularly if one of you is bringing a lot more to the relationship than the other.
· Make sure you understand the implications for every decision you make whether that is legal or financial.
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