In England, a ‘common law spouse’ has no special legal status: you are either married (or in a civil partnership), or you are not. (The situation is somewhat different in Scotland, where it is sometimes possible to be treated as married ‘by custom and repute’ even without a formal marriage.)
If a relationship breaks down, being a so-called common law wife or husband does not give either partner the right to make a claim against the other for maintenance or a share of their assets. It is worth noting, however, that it may be possible for a parent to make a claim on behalf of a child they continue to look after.
Drawing up an agreement should not harm your relationship if you approach it in the right way. You should avoid looking at the agreement simply as a way of protecting you if the relationship breaks down, or even as a prediction that the relationship will at some point break down. Instead, you can use the preparation of drawing up the agreement to work through some of the key issues in your lives together. Handled sensitively, this process should, if anything, strengthen your relationship.
In some relationships, one partner has the majority of the income or assets. If the cohabitation agreement is designed solely to protect his or her financial position if they split up, the other partner may well resent it. On the other hand, an agreement which provides for some degree of financial protection for the less wealthy partner can increase that partner’s sense of security and happiness with the relationship.
Financial issues are a key part of a cohabitation agreement. The agreement should include what rights each partner has in relation to the property you live in (see 9 and 10), who owns other assets (see 12 and 13), and who is responsible for any debts (see 15). It’s also common for the agreement to look at how you will share expenses while you live together (see 14).
You may want to talk over issues like this while you are preparing the agreement. For example, if one partner works and the other looks after the home, you might feel that this should be reflected in the way you agree financial issues should the relationship break down. For example, you might agree that the ‘house-partner’ would be entitled to a share of the assets, or some form of maintenance, in much the same way as happens in a divorce or the dissolution of a civil partnership.
It is sensible to state in your cohabitation agreement how expenses will be shared. However, it is not generally a good idea to include rules on behaviour in the agreement. In part, this is because it would be very difficult to specify exactly what is being agreed in legally enforceable wording: for example what housework must be done, to what standard, and so on. Attempting to include such rules is likely to undermine the clarity and enforceability of the agreement. Instead, you would normally expect to deal with such issues between yourselves: after all, if you have to call in a lawyer every time one of you leaves the washing up, your relationship is in trouble!
An informal cohabitation agreement will almost certainly not be legally enforceable (see 6). Some aspects of the agreement may also need to be supported by legal documentation: for example, if you want to ensure that your partner inherits in the event of your death.
More broadly, preparing a formal agreement provides a useful framework for making sure that you give serious thought to all the areas that need to be addressed.
A cohabitation agreement is a contract between the two of you. To be legally enforceable, the agreement must have been made with the intention of having legal force – the agreement itself can say so. The document should use specific language to make it clear what you are agreeing. It must also be ‘executed as a deed’, signed in the presence of witnesses.
Even so, a cohabitation agreement may not be enforceable if it is unfair. To maximise the chances that the agreement is enforceable, both you and your partner must take independent legal advice. You must also be open and honest about your individual financial positions when you enter into the agreement.
If you get married (or register a civil partnership), your cohabitation agreement might be taken into account by the court if you later divorce or dissolve your civil partnership.
A better solution is for the cohabitation agreement to specifically state that it automatically comes to an end if you get married. If, at that time, you want to have a similar agreement, you can draw up an appropriate pre-nuptial agreement.
There are several possibilities:
You should ensure that your cohabitation agreement clearly states what you have agreed. You may also need to draw up an appropriate deed to put this into effect (see 9).
Ensure that what has been agreed is written into the cohabitation agreement. Depending on what you are doing, you may also need to draw up an appropriate Deed of Trust, setting out your rights to the property and what will happen if you split up. You should also ensure that your wills clearly state what will happen when either of you dies.
Normally, appropriately drafted documents of this kind will be enough to ensure that your rights and wishes are respected. However, the situation can be more complex if there are (non-adult) children involved. If so, the children will also have rights – which cannot be overruled by an agreement between you and your partner. For example, if you break up and your partner will continue to look after the children, he or she might be able to apply to the court for an order allowing them to continue living in the property, even if you are the sole owner.
If you are joint tenants, you will have equal rights and responsibilities.
Problems can arise where the tenancy is in only one of your names. The other partner will not normally have any rights to stay in the property if the named tenant asks you to leave, though it may be possible to apply to the court for short-term protection from this.
If the named tenant dies, the other partner will usually have the right to take over the tenancy. This may not be the case, however, for same sex couples unless they have registered a civil partnership or it is specifically permitted by the tenancy agreement.
In any case, the best solution is often to convert a sole tenancy to a joint one. This can be done if the existing named tenant and the landlord both agree.
Unless you have agreed otherwise:
When you buy something together, it will normally be jointly owned, but not necessarily 50/50:
If you choose, your cohabitation agreement can set out different rules. For example, you could agree to own everything equally, regardless of who pays for it, or you could agree to treat specific named assets differently.
Ownership of assets is normally determined by who paid for the assets (see 12) rather than by your overall contribution to your joint living expenses. You can, however, include different rules in your cohabitation agreement.
If either partner contributes to the costs of buying and maintaining the home you live in, this is likely to give them a claim to own a share of the home. If it is your intention that the property should be solely owned by one of you, the agreement should clearly state that any financial contribution made by the other partner is a payment towards general living expenses and not for the home.
Normally, you will only be liable for your partner’s debts if you agree to be: for example, by borrowing money in joint names or by giving a personal guarantee.
Regardless of what you have agreed, both the utility companies and the council have the right to pursue both partners living in a home for unpaid utility and council tax bills.
If you are the natural parent of the child, you automatically have a financial responsibility for the child.
The natural mother of a child automatically has parental responsibility for the child. This means, for example, that you can choose your child’s name, how the child is brought up and so on. You also have the right to look after the child’s property on his or her behalf (until the child becomes 18).
The natural father of the child also has parental responsibility if:
If you are not the natural father of your partner’s child, you do not have any automatic rights or responsibilities. You can apply to the court for a ‘residence order’ giving you parental responsibility (see 16).
Note that if your relationship breaks down, both partners have the right to ask the court that the child should live with them, or that they should have access to the child, regardless of whether they have parental responsibility. The court will decide what is in the best interests of the child.
You will need to apply to the court for a ‘residence order’. Normally, this requires the consent of anyone who already has parental responsibility for the child (see 15). If, for example, you were married to the child’s father and he is still alive, you will need the natural father’s consent. The court will also need to be satisfied that the residence order is in the child’s best interests.
It may also be possible to get a residence order without the consent of another individual with parental responsibility, provided the child has been living with your partner for three of the last five years, or if the court gives you permission. But getting a residence order can be difficult and expensive if an individual who has parental responsibility opposes your application.
If you cannot get a residence order (or feel that it would be too difficult), an alternative is to appoint your partner as the child’s guardian. This helps to ensure that your child stays with your partner if you die, unless another individual with parental responsibility decides to dispute this.
Like any other couple, you should make appropriate financial arrangements. The best solution will depend on your circumstances: for example, if one of you is the major earner, you may want to take out insurance in case that individual can no longer work.
If you want your partner to take responsibility if you become incapable of making decisions, you should draw up a lasting power of attorney to that effect.
You may each want to consider drafting a ‘living will’ expressing your preferences should you become terminally ill. This can include a statement that you would like the doctors to consult your partner if appropriate. You may also want to ensure that your partner is named as your next of kin – for example, on any medical forms. While neither of these steps will necessarily have legal effect, in practice they should help to ensure that medical staff treat your partner as if he or she was your spouse.
Unlike married couples or couples in a civil partnership, your partner will not automatically inherit. You must have made a will saying what you want your partner to inherit. You should take care to ensure that this protects your partner’s right to continue living in your home (assuming that you want this to be the case).
If the value of your estate is above the inheritance tax threshold, your partner will be liable to inheritance tax. There are a number of ways you can minimise this liability. For example, you can own the home jointly (so that only half the value of the home falls into the deceased partner’s estate), or you can make use of ‘potentially exempt transfers’ by gifting assets while alive. Inheritance tax planning can be complex and you should take advice.
The most effective way to reduce inheritance tax is to marry or register a civil partnership. Any assets your spouse or civil partner inherits are automatically free from inheritance tax.
If there are children, you should also consider whether you want to pass assets to the children, rather than to your partner. For example, if you own the house (or part of it), you could leave it to the children, but give your partner the right to live in it until death. Otherwise, the house will be part of your partner’s estate when he or she dies, and could be liable to inheritance tax again.
Your partner’s entitlement to your pension will depend on the pension scheme’s rules. Some schemes do offer benefits to an unmarried partner. Similarly, your employer may extend benefits such as health insurance to unmarried partners. You should consult your employer’s human resources department, or your pension scheme trustees, to find out what the rules are. Where appropriate, you should inform them of your wish that your partner should benefit if you die.
If you are not married or in a registered civil partnership, your partner is not entitled to any state pension benefits or bereavement allowances based on your National Insurance contributions.
Note that if you are arranging a private pension (or other benefits such as life insurance), ensuring that your partner is also covered will increase the costs substantially.
It is good practice to review your cohabitation every five years. You should also review it whenever there are any major changes in your circumstances: in particular, when a child is born.
It is good practice to include a dispute resolution procedure as part of the cohabitation agreement. For example, you might agree to try mediation rather than going to court.
In any case, it is almost always better to try to negotiate a resolution to any dispute, rather than going to court where costs can become very high.
It has become increasingly common for couples to cohabit rather than to marry, and it is generally accepted that the current legal position is far from ideal. In these circumstances, we are likely to see changes to the law over the coming years. For example, the law commission has recommended that cohabiting partners should automatically become entitled to a share of the home.
It is a good idea to review your cohabitation agreement periodically, even if your circumstances have not changed, to ensure that it is still appropriate given any changes in the law.
Not always. For example:
You can, however, use an appropriate cohabitation agreement, wills and so on in the same way as a heterosexual couple.
The Civil Partnership Act became law in November 2004, and its provisions have now come into effect. The law applies only to same sex couples.
Under the Act, same-sex couples can register as a civil partnership. This gives them similar rights and responsibilities to those of a married couple. For example, civil partners have a duty to provide reasonable maintenance for their partner (and any children). They are also treated in a similar way for benefits, pensions and so on.
Registering your relationship may well be a good way of helping to protect your partner. For example, a registered partner is in a stronger position if you die without leaving a will naming them as your inheritor. However, it will still make sense to prepare a cohabitation agreement and any other appropriate documentation (such as a will).