Cohabitation and the difference families face when separating if not married
If you and your partner aren’t married or in a civil partnership, you have very little legal protection if you break up. It doesn’t matter if you’ve lived together for years or have children. You are not legally recognised as a couple, making it very difficult to claim a share in the family home or your partner’s finances if you split.
For couples living together it can seem normal for one partner to give up work to care for children or elderly relatives – or for the couple to make a verbal agreement where one pays the mortgage and the other pays the bills. But without having an agreement in place, the court can’t make your ex pay maintenance to support you just because it might be fair.
What’s the risk?
When married couples separate, the law permits courts to divide property and finances in a manner that is fair to both partners. When unmarried couples separate, even if they have children together, the partners do not have the same rights.
If your name isn’t on a deed or rental agreement, you do not automatically have a right to stay in your home. Even if you’ve put money into your home by paying bills, helping with the mortgage or deposit, you could be asked to leave your home and be left with nothing.
If you have children together your partner would still have obligations to support them, however they wouldn’t need to support you. This could make it difficult to support your family without accessing additional money.
What can I do?
We want you to stay together, but it’s worth taking precautions to protect yourself. Take your future into your own hands.
If marriage or civil partnership is not an option, there are other ways to ensure that both you and your partner are protected:
- Cohabitation agreement – this sets out your joint intentions for things like finances, property and arrangements for children if you split up. A cohabitation agreement can be completely bespoke and cover whatever you both agree on – from how to handle support of a partner who gave up their career to have children to who would get the dog.
- Declaration of Trust – this sets out how you want to own a property and in what shares, and can also cover what happens if you split up. If you are purchasing property together but not contributing equal shares, a declaration of trust can provide for each person to get back a fair portion of what they’ve put in to the property when it is sold. For example, if one partner’s parents provide a loan for the deposit, a deed of trust can record this contribution and ensure they are paid back if the couple splits and they sell the home.
- Will – if one partner in an unmarried couple dies, the other does not have an automatic right to inherit your share of the property or possessions, without this being spelled out in a will. Even if the other partner has lived in the joint home for decades, without their name on the deed or as a beneficiary in the will, they could lose their home and any right to proceeds from the sale.
If you find yourself in this situation, it’s wise to seek legal advice first to find out what option is best for your family.
Article written by Elisabeth Sneade, Partner and Head of Family Law at Edmondson Hall.