47% of UK adults aged 18-34 think that cohabiting couples have the same legal rights as their married counterparts according to recent research. The same survey found that 58% of all adults do not know that the commonly used term ‘common law wife/husband’ is not actually a recognised legal status.
The effect of this misconception can be considerable, and often only discovered by a co-habitee when the relationship breaks down and they are left without the assets to which they thought they were entitled to at least a share.
It is also important to recognize that non-married couples do not automatically inherit on death and so without a Will the surviving partner may not inherit anything.
Furthermore, there are circumstances where the unmarried father of a child may not automatically have parental responsibility for his child, meaning that he may not have all of the legal rights and responsibilities a parent normally has, for example to make decisions about where his child is schooled and other issues with regard to upbringing.
Perhaps the most common issue arises in respect of property ownership and rights. Whilst a married spouse has rights to both reside in the matrimonial home and to a share of it on divorce, as a co-habitee you have no right to a share of your partner’s property unless you jointly own it, there is an express declaration of trust or Cohabitation Agreement providing you with an entitlement, or you can prove in Court that you have made a contribution to it. It is often difficult to demonstrate that you have made a sufficient contribution to the property to ascertain an interest in the property, for example payment of consumables such as utility bills would not be enough. This can be a shock for an unmarried co-habitee – to be left entitled to nothing where the relationship may have lasted for decades.
A Cohabitation Agreement can help unmarried couples to set out their expectations and entitlements both during the relationship and after it has ended. This should be prepared with the assistance of a solicitor specialising in Family Law to ensure that it is drafted effectively.