More and more people are choosing to live with each other for the long term, outside of marriage. In practical terms, the commitment by both people to the relationship is similar whether married or not: the purchase (or rental) and upkeep of a home, a joint bank account, and savings are all shared. Many people, however, do not realise that their legal rights as cohabitees in the event of break-up or death are not as strong as if they were married.
This article is explains how you can strengthen your legal rights through voluntary agreements.
The law does not recognise “common-law marriage”
In all countries of the UK, the concept of common-law marriage – being in a committed, long term relationship similar to any married couple – is not recognised in law.
The legal rights of partners are much reduced, particularly with respect to intestacy (when one partner dies without having made a will) and separation.
If you are married and die without having made a will, the majority of your assets are passed automatically to your husband or wife without incurring inheritance tax. In contrast, if you are unmarried and die without a will, then your assets are automatically passed to close blood relatives, and inheritance tax may be payable. Your partner receives nothing.
If you separate, then property you brought into the relationship or bought for yourself remains yours to take away. Your partner is not entitled to a share of it (unless he or she can prove you gave it to him or her, or that it is actually jointly owned), nor to any maintenance payment.
How you own property jointly is important
In law, property (which might be the house you live in, a car, or money in a bank account) can be jointly owned in two ways: as “joint tenants” or as “tenants in common”.
If you own something as joint tenants, then the whole belongs to both of you jointly. There is no distinction as to how much each of you owns. If you own it as tenants in common, then you hold it in specific shares such as 50:50 or 80:20.
Owning property as joint tenants is the default legal position. To own it as tenants in common, you must agree (preferably in writing so as to be able to prove it) to “sever the joint tenancy” and take specific shares.
There are some consequences as a result of how you own property if you are not married.
If you break up, there is no legal obligation to divide jointly owned property. You both still remain legal owners even if the emotional relationship ends. One of you may wish to sell and divide the proceeds, the other may not. If you haven’t agreed in advance what would happen, you may have to ask a court to force the other side to sell.
Just because you contribute to the upkeep of a home, or to the mortgage, does not give you an automatic right of ownership, or any rights to continue living in it.
On your death, assets you own with someone else as joint tenants remain the property of the surviving owner. They don’t form part of your estate, so you cannot leave them to someone else through your will. However, inheritance tax may be payable on your share.
Strengthening your legal rights
Make a will
The only way of making sure that your unmarried partner receives the property, wealth and possessions that you would like him or her to receive if you were to die, is to make a will.
Doing so is not difficult, is not expensive, and does not require you to use a solicitor. Net Lawman provides a number of templates and online will writing software for free. To make your will legally binding, you simply need to sign it in front of two witnesses who will not benefit from it.
In your will, you can also allow your partner to continue using your property during his or her lifetime without owning it. On his or her death, it passes to whomever you nominate.
Set out who owns what
You could list items with any significant financial or sentimental value, marking who owns them, or in what proportions they are owned. Shares could be fixed, or change over time. For items that require maintenance, such as a car or your home, you should also consider who pays for the upkeep, who repays any financing taken out to buy the item, and whether contributing to the repayment entitles one of you to a share in the item.
A rather grand sounding document, known either as a deed of trust or a declaration of trust does exactly this – record what each person agrees the other should take if they were to break up.
Write a cohabitation agreement
A document usually known as a cohabitation agreement or living together agreement goes further. It can cover more matters, such as those relating to day to day running of the household, for example, who deals with administration and how much each partner contributes to joint expenses. You may feel this is not necessary because you trust your partner to act in your best interests, but doing so can shed light on how a relationship worked if later there is a dispute over ownership.
Paying joint bills
Most cohabiting couples have a joint bank account. If not, it is important to make sure that you can both still access some money to pay joint bills if you break up, or one of you dies, or if one of you becomes incapacitated.
A lasting power of attorney can give your partner the legal right to access your bank accounts for specific purposes if you lose mental capacity.
Children
Matters concerning care of your children if you were to die should be covered in your will. These might include who would look after them, and how money you leave for them should be managed and spent.
Although a cohabiting partner is not entitled to maintenance payments himself or herself from the other, maintenance payments for children if you break up might be something you want to consider in your cohabitation agreement. Additionally, you might agree where the children might live, and how each parent would have access to them.
Note that the court has the power to vary any arrangements you have made between yourself, so while your arrangement might form the basis of a court order if it works well, your agreement with respect to your children shouldn’t be seen as final.
Make sure pension schemes and life assurance policies would pay to your partner
Some occupational pension schemes only allow a widow or widower to receive a life assurance lump sum or pension. However, others allow you to nominate your partner if you complete an expression of wish form.
A surviving partner is not entitled to receive state pension or any allowance for a deceased partner.