What key legal considerations should unmarried couples think about when moving in together?
We would advise that unmarried couples should consider whether they need to protect any assets they are bringing into the relationship. It is, unfortunately, common for one party to lose out when parties separate, this can often be avoided if a cohabitation agreement is entered into prior to living together. A cohabitation agreement removes the potential for disagreement, unfairness and potential litigation on a relationship breaking down.
If, for example, the property a couple will be living in is owned by one party and it is not the intention that the party moving in would gain any interest in the property then a cohabitation agreement can document this and set out what happens practically if the parties were to separate. It is also very important to consider where one party is putting in more financially to the property, as for example if the property is held as joint tenants you both own the whole and on separation each party would be entitled to 50% of the net equity regardless of financial contribution.
Couples should consider what they would wish to happen if they were to separate and how this would affect any assets. It is much easier to reach an agreement whilst in a relationship than when it has broken down.
Every relationship is different and in order to consider all legal implications of cohabiting with a partner you should both obtain independent legal advice.
How do unmarried couples’ rights differ from married couples? Does this change after a certain amount of time living together?
As a married couple there is legislation that can be accessed through the court to determine the finances of married couples on separation. These include financial claims that parties can make in relation to matrimonial assets whether in joint or sole names. Married couples can also apply for maintenance for themselves from the other party, and also make claims against pensions.
There is nothing similar for unmarried couples. One major difference is that unmarried couples cannot claim maintenance for themselves (spousal maintenance) from the other party. The only legislation that unmarried couples can use relates to jointly owned property (whether beneficial or legal ownership) or where there are children of the relationship.
This does not change after any length of time and there is no such thing as a common law marriage. Unfortunately, it remains a common misconception that if you have lived together with your partner for a certain period of time (2 years is often quoted), that you will have the same rights as a married couple. This is not the case. Regardless of whether you have lived together for 2 years or 30 years. Currently cohabiting couples do not have the same financial rights when they separate as married couples do.
What is a cohabitation agreement and how can it protect unmarried couples living together?
A cohabitation agreement is a formal agreement that deals with what would happen in the event of separation. This document can confirm what the couple have agreed in relation to the current setup so for example, who is paying for which bills or the percentage contributions. The agreement can also deal with setting out the assets owned by each party and how these should be dealt with if the couple were to separate. It can detail whether one party should get the option to buy the other out first, or whether one party will move out within a certain period of time for example. They go much further than trust deeds which only deal with how the shares in the property are held.
Should unmarried couples moving in together think about making or updating their wills?
Yes, couples should ensure they have a Will. There is another misconception that unmarried couples will have an automatic claim to each others’ estate in the event one of them dies. In order to ensure that their assets are distributed how they wish they should ensure they make or update any Will upon cohabitation.
What top legal tips would you give to unmarried couples living together?
Obtain independent legal advice before living together to make sure you have considered all relevant implications. It is so important to consider matters early on to avoid complications and costly Court proceedings if unfortunately you decide to separate later.
When buying a property together couples should consider how this property will be legally owned. You may want to hold the property in unequal shares for example, where one party has provided a larger share towards the purchase price. If a couple were to hold the property as Joint Tenants in equal shares this could mean that on separation the proceeds of sale are divided equally between the parties. This may not be the intention of the parties and Court proceedings can be expensive and may take many months or years to resolve matters. Couples may want to consider holding the property as Tenants in Common so that their respective share will pass under the terms of their Will. This may be important where there are children from a previous relationship.
Couples should consider entering into a Declaration of Trust which can clarify the beneficial interest of each party of any jointly owned property. This document can then be referred to when parties separate along with any cohabitation agreement to ensure any sale proceeds are dealt with as agreed by the parties. It is often the case that one party could lose several thousands of pounds if they do not protect their interest in a property when this is purchased and the Court have no alternative but to divide the proceeds equally.
When unmarried couples separate they can seek to obtain maintenance in relation to the child either by agreement or through the CMS. There are also financial provisions and property orders that can be made for the benefit of a child through the courts and we would suggest further legal advice is taken in these circumstances.