Cohabiting couples are the fastest growing family type in the UK. Merging families add yet another level of complexity.
Every day people make the huge decision to move in with their partners or buy a home together, but few couples consider their legal position until it is too late.
Although these days it may seem an outdated concept, couples who are unmarried or not in a civil partnership are not protected by the law. It is a prevalent misconception that in the UK cohabiting couples carry some legal status often described as ‘common law marriage’.
Sadly most people only discover this is untrue when a relationship breaks down or a partner dies and the remaining partner realises they do not have any legal protection.
At Davey Law we apply our experience to ensure that you have considered and understand everything you need to know about living together including:-
- The rights you do have
- Where you and your partner stand in certain situations
- What each of you can do to make your position more secure
If you move in with somebody who owns a house in their sole name, you will usually have no right to stay in the home if your partner dies; or to proceeds from selling the house unless you can prove that you have made a financial commitment to the property.
If your partner asks you to leave, you are unlikely to have any right to continue to live at the property. This can be very difficult if you have made it your home over a number of years or have children.
If your partner dies, you will have no automatic right to inherit the property and you may need to pursue a claim through the Court if you have lived at the property for more than two years. It is essential that co-habiting couples have up to date Wills that accurately reflect their wishes.
Steps can be taken to transfer a property from your partner’s sole name into your joint names (either as ‘joint tenants’ or ‘tenants in common’). This would mean that you may be entitled to a share of the proceeds when the property is sold, or if one of you dies you will have some inheritance rights. It is possible to agree precise shares of the property by drawing up a ‘Deed of Trust’. This can prevent disagreements later, particularly if you want to leave the property to others when you die, which is commonplace in merged families.
If renting, it’s a good idea to have the tenancy agreement in both your names to protect your position.
If you live with someone who has a child from another relationship, the law gives you no parental responsibility for that child. You may wish to explore formal adoption in some circumstances, although this is unlikely to arise if the child’s birth parent is still alive. If you have children with your new partner, you will need to decide what surname the child will use and how you will register their birth. If you are not married, the mother of the child has automatic parental responsibility although since 1st December 2003, if the father is named on the birth certificate, he may also have parental responsibility. It is important to consider these issues if you split up later and want to be able to continue to make decisions on behalf of your child.
Children and Separation
If you and your partner split up, you can apply to the child support agency for support payments and to the Courts for other financial help relating to your child. Child Support.
Next of Kin Status
If your partner falls ill or dies, you may not be considered their next of kin for medical purposes unless you have a written agreement to confirm this. This means that you may not be able to make decisions about your partner’s treatment or even see them in some circumstances or deal with their funeral arrangements and in some cases you may be excluded from the process all together where families have broken down.
If you and your partner have separate bank accounts, you will not be able to access the money in your partner’s bank account even if they are severely injured, lose mental capacity or die. There are documents [link to POA page] that can be drafted to ensure that you can access their funds under certain circumstances.
Co-habiting couples do not have the same tax benefits as married couples or those in civil partnerships. You may have to pay tax if you want to give significant assets to your partner and you will have different rights in terms of capital gains tax and inheritance tax.
If you die, your state pension will not automatically pass to your partner. If you have private pensions you will need to make enquiries into who can be named as a beneficiary under the pension and what level of pension can be transferred. It is likely that you will have to make a formal declaration appointing a beneficiary. There may be tax implications relating to your beneficiary not being your legal partner or child.
Making a Will
Unless you make a Will, your partner will have no automatic right to a share of your assets if you die. It is always advisable to make a Will setting out your intentions to avoid conflict and tension particularly if you are a merging family.
Such contracts are slowly gaining recognition as a way of negotiating financial and other arrangements for cohabiting couples. No one likes to think about the end of a relationship when they are in the first flushes of romance however not all clauses may be enforceable by the courts but often they help to reduce acrimonious splits.
Power of Attorney
A Power of Attorney can solve many of the problems related to a partner not being classed as next of kin and issues with immediate access to finances as set out above. It is always wise to investigate the benefit of a Lasting Power of Attorney, particularly if you are in a long term relationship.
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