Legal rights of cohabiting couples

The legal rights of cohabiting couples are very different to those of couples who are married or in a civil partnership. 

The reality is that cohabiting couples don’t have many rights around finances, property or children. You can mitigate this situation, to an extent, by making a Will and getting a cohabitation agreement drawn up.


Common Law Cohabiting

There is no such thing as a Common Law Husband or Common Law Wife! Many people believe that if they live together for a certain amount of time they gain certain rights as ‘common law husband/wife’. There is no basis for this in English law.


Cohabitation legal rights - finance

The law treats you as two separate entities. Any bank accounts, investments or savings remain in the ownership of whoever’s name they are in. This means that if you die and have separate bank accounts, your partner will not be able to legally access your account. Similarly, if you die your state pension is not automatically passed to your partner. If you separate, you will have no claims regarding each other’s pensions, savings or income. From a tax perspective, you and your partner have no tax benefits as a couple.


Cohabitation legal rights - house purchase

More and more couples are choosing to live together without getting married or entering into a civil partnership. The legal rights of cohabitation where any property is concerned, depends on how that property is owned.


Property can be owned jointly in one of two ways – as joint tenants or as tenants in common. Where a couple owns a property as joint tenants, they are considered to be joint and equal owners. If one of you dies, the other automatically inherits the property. This cannot be changed by a Will. 


Where a couple owns a property as tenants in common, they each own shares in the property and these shares can be held equally or not. If the ownership split is not equal, this is usually evidenced in a Declaration of Trust document. With tenants in common ownership, if you split up you will be entitled to your own share in the property. If your partner dies, you will not automatically inherit their share, unless they have left it to you in their Will. 


If the property is owned by one person only, a cohabitee might be able to show that they should have an interest in the property if they can prove that they made a financial contribution to the purchase or have financed (or constructed themselves) an extension or made substantial improvement to the property on the understanding that they would own a share of the house.


This means if you split up and you are not the owner you have no right to continue living in the property. And unless it’s left to you in their Will, you won’t automatically inherit the property if your partner dies.

In many cases, problems arise when someone injects capital into a property and claims there was an agreement, or understanding, that this was in return for a beneficial interest in the property, ie they expected to have their capital amount returned when the relationship breaks down. If you are considering investing capital into a property that you own jointly with a partner – or one that is held in your partner’s sole name – it’s really important to have a frank and open conversation about whether it’s intended that you will acquire a beneficial interest. If this is the case, it’s really important to seek legal advice and have a Declaration of Trust drawn up, to avoid any disputes further down the line.


The laws on cohabiting couples can be tricky to navigate, so it’s always best to seek legal advice if you are unsure about anything.


Cohabitation legal rights - parental responsibility

If you or your partner has a child/ren from another relationship, you don’t automatically have parental responsibility for them. Parental responsibility means that you have a say in decisions about a child. Although parental responsibility can subsequently be acquired in other ways, a father only has automatic parental responsibility if they are on the child’s birth certificate.


Cohabitation legal rights - medical emergencies

If your partner becomes ill (and you haven’t made a written agreement beforehand), you will not be treated as next of kin. So you won’t have a right to know about their condition or to see them in hospital; equally, you will have no say in their care plan. If you partner dies, you will have no right to make any funeral arrangements, because you are not next of kin.


Cohabitation Agreements and Wills 

If you want to make sure that you and your partner’s interests are protected, you should consider a cohabitation agreement. It should be noted that a cohabitation agreement is not usually adequate to settle all legal issues that might arise, so it’s really important that you have an up-to-date Will (without one your partner and their children will not automatically inherit from you) - and your solicitor can advise if you need a Declaration of Trust to cover any property rights.

On a final note, there is no such thing as ‘legal cohabitation’. If you are living together without being married or being in a civil partnership, then you don’t have as many rights around the really important things in life, like finances, property and - to an extent - children. A solicitor can explain how a cohabitation agreement can protect you and your partner’s interests and help you write your Will or ensure that an existing Will reflects your current

To find out more, call us on: 01603 625231