Over the last few years, an increasing number of couples are choosing to cohabit instead of getting married, however, this choice means you will have fewer rights in relation to your finances, children and home in comparison to a married couple.
Many couples believe that living together means they are protected by law as they consider themselves as being part of a common-law marriage, however, across England and Wales this is not the case.
The idea of a common-law marriage is not legally recognised and is in fact just a concept therefore couples who choose to cohabit are not considered as being in a legal relationship in the eyes of the law.
Unfortunately, this leaves cohabiting couples open to many risks if they choose to separate from their partner in the future. With this in mind, we have outlined the options for couples that want to live together but don’t want to get married.
A cohabitation agreement sets out each partner’s rights in terms of how much of property they are entitled to, as well as considerations for the finances and children involved if the couple separates or in the event of a death or a serious illness.
It’s best to make an agreement before you move in with your partner but legally you can make one even after you’ve lived together for a while. It’s important to instruct a solicitor to help you to create a cohabitation agreement as they will be able to ensure it is done properly and that it is legally binding.
While cohabitation agreements are usually drafted for romantic relationships, they can be created for anyone who is living together, such as siblings.
Finances
Working out your finances as a couple can be complicated, but it’s worth looking at them before you start living together. Often couples opt to keep their bank accounts separate because it seems easier or more organised but this can be problematic if one person in the relationship dies, as their partner will not be able to legally access their account.
This is why it is often a good idea to set up a joint account so that both people in the relationship can access it. However, if the couple decides to separate in the future and they have not already made an agreement about how to split the account then a court may have to intervene.
Having a joint account means that if one partner dies, then the surviving person in the relationship will be entitled to the remaining balance (after the value of the deceased’s estate has been worked out.)
If one of the people in the relationship dies and has not written a will, this can be problematic, as unmarried couples’ rights are not protected under the law. A will is the only way that the unmarried surviving partner can inherit any of the deceased’s estate and so it’s vital that both people in the relationship make a will.
In addition, if the surviving partner inherits any of the deceased’s estate, if their partner did make a will, they will need still to pay inheritance tax, unlike married couples who do not. Therefore, it’s advisable to include tax planning when drafting a will.
When couples cohabit, they are still only responsible for debts that are just in their own individual names.
With joint debts, both people in the relationship have to pay all of their debt, whether it is in a joint name or not.
Similarly, if one person in the relationship had a debt and the other person acted as their guarantor, then they will be legally required to pay the other person’s debt off.
Unfortunately, it’s not uncommonly seen that if one person in the couple has a history of debt, they convince their partner to get a joint credit card or enter into joint loans with them meaning that their unaware partner is left with the responsibility of paying their debt if they separate in the future.
Buying a property as a couple
As exciting as buying a property together can be, it’s important to think about the worst-case scenario and to be practical. Although unromantic, it’s also necessary when buying a property together in order to avoid financial disaster if the relationship does end in the future.
To ensure that everything is communicated properly and organised, it’s good to get a Declaration of Trust. This is a legal document that notes the financial agreements involved in a property purchase between a couple.
Overall, although it can seem excessive to get a cohabitation agreement and a Declaration of Trust, it’s crucial in order to avoid financial complications and stress later down the line if a couple does decide to split.
A specialist probate lawyer can help draft these documents, saving you time and stress. To receive a quote, email lauraharrington-rutterford@attwells.com
