Cohabiting: Your Rights on Separation

According to family lawyers there has been a surge in the number of cohabitees seeking relationship advice in England and Wales, with cases up by about 15% in the first quarter of this year, compared with last year.

This large increase has been caused partly because more people are now living together and therefore there would be more breakdowns of relationships.

                                Image: The Parting of Abelard and Heloise by Angelica Kauffman 1775

Also, as the recession begins to bite hard, many people have lost their jobs, or are experiencing a fall-off in business and are finding it difficult to meet their financial commitments, falling behind in mortgage payments or rent, and losing their homes, with some people even going bankrupt. These financial pressures cause stress, bad temper, lack of transparency and disagreements, all of which are instrumental in causing breakdown of relationships.

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Unlike Marriage, cohabitation can start
in a very casual way - the guest who came
to stay for one night and was still there, in
your bed, five years later.

Alternatively the couple may have come
to a decision to cohabit only after very
careful thought, weighing up all the
pro's and cons.

Sometimes it is a genuine trial
marriage, and other times just a
casual relationship, with someone
you like at the time, but would
have no long-term plans to marry.




After a relatively short term relationship, with no children involved, a break-up may well have emotional and social consequences, but there are not necessarily any long term legal consequences (unless either person has changed their situation substantially).

However difficulties can arise when the parties have in fact changed their position, possibly by having a child, or by entering into joint commitments such as buying or renting property and expensive items, or one person contributing substantially more financially than the other, or making promises which have not been fulfilled.

If the property you live in is in your partner's sole name, you would not have an automatic right to any part of it unless you can prove that you are entitled to a share.

This might be:

- Because you have contributed to the purchase of the property. In that case, you would be entitled to a share of the value in proportion to the amount which each of you contributed;

- or you made a direct financial contribution (this could be by paying all or part of the mortgage), or an indirect contribution, possibly by paying for all the other outgoings, thereby releasing your partner's money to pay the mortgage, In those circumstances, the Court would consider your financial arrangements throughout your relationship, and would then award you a fair share.

- or your partner promised that you would have a share and you acted on that promise; in such a case the court might transfer the property into your name, give you the right to live there (sometimes just for a specified period of time) or award you a fair share of the proceeds of sale or value of the property.

Your chances of success rely on the strength of the evidence you can produce, so clearly it is important to retain evidence of payments made, or evidence of any agreement made (preferably in writing, signed and dated).

It can be very difficult, expensive and time consuming to establish that you have a right.to a share in property which is not in your name, so it is best to have a written agreement on which you can both rely in the future.

When Cohabitees Buy a Property Together Should They Hold it As Joint Tenants or Tenants in Common?

When property is jointly owned by two people, they need to decide how the property is to be held in the event of their separation or one of them dying.

There are two ways of holding a property: -

i) Holding as beneficial joint tenants which means that in the event of the death of one of you, the property passes to the other person automatically without the need for a Will. This is the old Roman law called "jus accrescendi" which means that the "right of accretion" passes to the surviving person. If you own the property as "beneficial joint tenants" you own half each and nothing that either of you have done during your relationship affects this

ii) the property may be held as tenants in common and this means that on death the property does not pass to the other person automatically - if there is a Will it passes in accordance with the Will and if there is no Will it passes to the person's next of kin. The Will might define whether the survivor has a right to continue to live at the property and how the property should devolve if there are children of one or both parties. If you own the property as "tenants in common" then the size of your share should have been specified. You should check. If they have not been specified, you will have to establish the size of your share, based on similar principles as described above. Where the documents are clear that will stand unless you can show that there has been fraud or mistake.

Sometimes conveyancers or solicitors fail to specify in the purchase documentation how you are holding the property in either of these ways. In such circumstances there is a presumption that you hold the property in equal shares unless you are able to show that this is not the case, based on the sort of principles described above. It is important that you check this on the legal documents.

When parties are not married it is usual for them to hold the property as tenants in common. They can still pass the property to each other by Will if they want to but if they do not, then they can pass their individual share to someone else - for instance if either of them has a second family or for tax planning.

You will both need to decide which of the above alternatives you would like and it is essential to ensure that your choice is registered at the Land Registry by your solicitor or conveyancer. In case of later dispute, it is always best to have a written statement of the share of the purchase price which you have each contributed to the property, including legal costs. Keep this information in a safe place permanently.

If you do not already have Wills it would be important to make a Will concerning your share of the property. Even if you have for example, a 100% mortgage, on your death this might be paid off by an insurance policy and there would then be a very substantial asset in your estate.

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Although you may get on well now, there could be a time in the future when you wish to part company or there is a dispute about property. For this reason it is best to have a document called a Declaration of Trust or a Cohabitation Agreement, which is an agreement in writing setting out how you would deal with the property in this event.

A Declaration of Trust normally states the shares in which the property is held, and sometimes the amount which each person has contributed to the purchase of the property. It may contain other things as well.

A Cohabitation Agreement would cover such things as:-

- how the mortgage would be paid
- who pays the outgoings
- how the property will be dealt with if one person wants to leave, for instance that the person who wants to leave would have to offer their share of the property to the other person for purchase at market valuation and that there would be a time limit for the other person to raise funds, after which the property would be sold on the open market, and that both people would agree not to obstruct the sale if this happens.

Providing for these circumsances now could prevent a great deal of disagreement in the future.

The father will only automatically have parental responsibility if he registered as the father on the birth certificate after 1 December 2003. If his name is not on the birth certificate, he needs to apply for parental responsibility, either by obtaining formal agreement in writing from the mother or applying to court (See more detail about Parental Responsibility in the next headed section below).

A father is obliged by law to maintain his children, even if he doesn't see them. The law is similar for mothers.

The mother will not automatically be entitled to maintenance from her partner for herself,

The parent who is the children's main carer can make financial claims in respect of the children from the other parent (under Schedule 1 Children Act 1989). It would be very rare for a father to be required by court to pay for children by a different father, unless he has assumed full responsibility for them.

Whichever partner is the main carer might be permitted to continue to live in the property whilst the children are dependent, regardless of who owns the property. The Court can make an order for a lump sum to provide for housing or for other specific capital needs of the children, having regard to what would be in the best interests of the children. Generally capital would have to be repaid once the children are 18 or have finished their education.

The parent with whom the children live would also be able to get financial support for their children through the Child Support Agency and in some cases through the court.

If you have children, the father does not normally have automatic Parental Responsibility and if you both agree that he should have this, you should sign a Parental Responsibility Agreement, and register it at your local Court. However, under a very recent law, if a father attends to register the baby's birth and his name is entered on the birth certificate, he will now have automatic Parental Responsibility.

Parental Responsibility is defined as all the rights, duties, powers, responsibilities and authority which by law the parent of a child has in relation to the child and her property. These are not defined by the Court and it should be noted that this responsibility exists for the benefit of the child (i.e. for his or her care and protection) and not for the benefit of the parent. It includes the duty to look after and bring up a child and in order to do that, the power to control the child physically including discipline, protection, maintenance and the duty to show affection, care and interest to the child, a duty to ensure the child is educated and attends school regularly (and a right to have reports on the child's school progress) and to make decisions concerning religious upbringing, medical treatment and consent to a child under 18 marrying and removal out of the jurisdiction including a veto over the issue of a Passport for a child under 18.

Thus unmarried fathers without Parental Responsibility have few rights with regard to their children. If the mother is not available, the father cannot legally give his consent to an urgently needed operation, cannot object to the mother taking the children abroad, and has no say in any important matters which affect the child.

If Parental Responsibility is not agreed, the father can apply to the Magistrates Court or County Court for a Parental Responsibility Order. The Court would normally make such an order in spite of any objections by the mother, provided that it is in the interests of the child to do so. The Court starts from the basis that the child should have a good relationship with both parents and that he or she is entitled to know and be cared for by both parents. Therefore, in all but the most hopeless cases, where the father shows any commitment whatsoever to his children, the Court will make an order in his favour. Sometimes, if the mother raises strong objections, he may have to prove his commitment (which need not be just financial). Unless he is thoroughly irresponsible, violent or abusive, he would win his case, and he might win in spite of character flaws, so mothers should not waste time and money resisting unless there are serious reservations.

An unmarried father has no automatic right to have contact with his children. This would have to be by agreement with the mother, or by Court Order. He does, however, have a legal duty, enforceable by the Child Support Agency, to maintain his children.

The surviving partner is not entitled to any part of their deceased partner's estate unless they own the property as "beneficial joint tenants" in which case it would pass to them.

Otherwise the deceased partner's estate will go to their next of kin. This could be a spouse if they have never divorced. If the deceased has children, the spouse would get the first £250,000, personal possessions and income from half the rest of the capital. The remaining half would go to their children who would then receive the other half when the spouse dies. If the deceased partner was divorced or had never married, all property would then go to their children.This could mean that the surviving partner would be made homeless.

If partners own a property as "beneficial tenants in common", the deceased partner's share will go to their next-of-kin, as above. The surviving partner might be forced to sell the propoerty, or buy them out.

If the surviving partner is left without resources of their own, they would need to make a claim against their partner's estate on the basis that they lived together for at least two years prior to the date of death or that they were wholly or partly dependent on them. Making a claim against an estate can be difficult, costly and time consuming and for this reason it is important that the partners make wills.

If the mother dies, the father does not have an automatic right to have the children residing with him. If they are not all living together at the time of the mother's death, problems could arise if there are also other family members who wish to take on the responsibility of looking after the children. The mother should therefore make a will appointing the father as testamentary guardian (if this is appropriate).

If the family cannot agree where the children should live, an application for residence and or contact would have to be made through the court, who would then have to consider what is in the best interests of the children.

If you are unmarried partners or co-owners of property, and die simultaneously, by law the younger is deemed to have survived the older partner. Therefore if you leave everything to each other, the younger partner would inherit the older partner's estate, which would then pass only to the next-of-kin or persons named in the will of the younger partner. The older partner's side would be completely disinherited, so provision must be made in a will to avoid this situation.

Providing for the circumstances now can prevent a great deal of disagreement in the future.

Unmarried partners do not have an automatic right to inherit property which is not in joint names. The Law does not recognize the concept of "Common-Law spouse" except in very limited circumstances. A Cohabitee does not gain rights of ownership merely by contributing to housekeeping or even mortgage payments. This does not mean that a Cohabitee will never have a right to property unless it is in joint names, but as the Law is so complicated, it is much better to provide for your partner specifically in your Will to avoid anxiety and hardship.

If you are unmarried partners or co-owners of property, and die simultaneously, by law the younger is deemed to have survived the older partner. Therefore if you leave everything to each other, the younger partner would inherit the older partner's estate, which would then pass only to the next-of-kin or persons named in the will of the younger partner. The older partner's side would be completely disinherited, so provision must be made in a will to avoid this situation.

If you do not make a Will, your estate will devolve according to the law relating to intestacy. (Intestacy means not having a will). This can have unexpected results. it depends on your circumstances, but you do need to consider how you will protect those closest to you.

The Will disposes broadly speaking of everything which you own. A Will should be carefully worded, as it may affect not only the financial well being of your family but also its harmony. An unfair or inadequate Will can create lasting grievances.

If you are a Cohabitee, there are many reasons why you should make a Will. You will find them listed, and a lot more besides, in my web page - Why Make a Will?