Cohabiting couples overestimate their rights

A recent survey has found 35% of cohabitees believe they have the same rights as married couples

But that misconception could cost them dear as cohabiting couples are not afforded the same legal rights as their married counterparts.
The survey by YouGov* of more than 1,000 cohabiting couples has found that more than a third of people believe they have the same rights as married couples when things don’t work out and they have to go their separate ways, or if one of them were to die. In particular, they believe they have property, pension and maintenance rights, when in fact they do not.

There appears to be a lack of awareness over cohabitee rights, which could leave someone significantly out of pocket after a break up. It is assumed that a shared mortgage or becoming parents, or simply with the passage of time, that their rights ‘naturally’ increase. There is often a belief in protections for a “common law” spouse, but this is not a real legal status.

In short, the law does not recognize relationships other than those in a marriage or civil partnership. More than 17.5% of families in the UK are cohabiting couples and it is prudent, therefore, to protect themselves via another legal method. There are three sensible options to consider.

The first is to make a will. This protects the surviving partner and any children after a death but not, of course, in the event of a separation.

This same survey found a staggering 76% of couples have never heard of a Cohabitation Agreement or Living Together Agreement. It is legally binding and has been nicknamed the ‘no-nup’ as it sets out what each party brought to the relationship, and what they would get after it is over. It can even be used to regulate what the parties pay towards bills throughout its duration. This document can take into account how much each party has contributed financially, or could determine a 50/50 split. It could also be updated with the arrival of children, purchase of property, or other life changing events. It is the most comprehensive protection available for an unmarried couple as it covers all aspects of their finances.

In 21st century Britain, the biggest commitment of many couples is to buy a property together. How this is split after a break up, or a death, can depend on how the contract was drawn up in the first place, a solicitor will advise which option gives the most appropriate protection. Beneficial joint tenants mean their share will automatically pass to the other in the event of death byway of the right of survivorship. If they separate, the property will be split 50:50, even if one party contributed more financially to the purchase or repayments.

The other option is Tenants in common. Usually such purchasers own the property 50:50 but this can be amended to reflect an unequal share if one partner has contributed more to the purchase price for example. It therefore provides less protection in the event of a split as the weaker party will get less of the proceeds. It also requires both parties to specify where their share goes by making a will, as it would not necessarily go to the other purchaser in the event of a death. Indeed the parties could leave their share to anyone they choose, which could leave the survivor having to negotiate with the beneficiary after their partner’s death. It’s worth taking a look at any existing contracts to find out which has been used and evaluate if it provides the right level of security for a future together, or apart. It is fairly straightforward to change from one to the other.

The very idea of getting lawyers involved at the start of a relationship is truly unromantic. But, as the law is very much not on the side of cohabitees, it really is something to consider. Buying a house or the birth of a child are often good reminders for people to make a will. For unmarried couples, it would also be worth making a Cohabitation Agreement at the same time.

*YouGov poll was commissioned by national law firm Mills & Reeve.