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23 March 2022

Living Together Myths

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For more information on the facts and myths about co-habitation get in touch with our team today on 01284 767766. We have offices in Bury St. Edmunds, Sudbury and London and would love to give you the clarity and understanding you need.

According to the Office of National Statistics cohabiting, or living with your partner, either before or without getting married or entering into a civil partnership, is becoming increasingly common. So are the myths that surround the legalities of living together. Cohabiting couples often assume that they have the same rights as married couples, but this isn’t the case; which can often leave one party vulnerable in the event of a relationship breakdown. Before you start living together you should think about entering into a Living Together (or Cohabitation) Agreement, and if you’re already living together it’s not too late to make an agreement. This can set out your living arrangements: who will be paying the bills; the mortgage etc; and can also set out what will happen in the event of a separation. You may also need to think about how you own your home and whether a Declaration of Trust is required.

 

Questions frequently asked about the legalities of living together include:

Am I a Common Law Husband / Wife?

There is no such thing as a common law husband or wife. Just because a couple live together, does not give either of them any of the rights and claims they would have if they were married or in a civil partnership. But there are many ways to record and protect the rights of cohabiting parties and getting clear advice on your situation can save a lot of heartache in the long run.

Can I make a claim against my partner’s house if we have been living together?

The law treats couples who are married very differently to those who are not. There is no ‘magic’ number of cohabiting years when a person can claim a financial interest in their partner’s house whether it has been 3 years or 50 years. It may be possible to make a claim if a financial contribution has been made under complex laws of equity and trusts but it is by no means automatic. The best way is to own any property in joint names or to record any agreement you have reached in a properly prepared “Living Together Agreement”.

Can I make a claim against my partner’s house if we have children together?

If a couple with children separate, you have no right to carry on living in your partner’s house even if you are looking after the children. It is possible for a claim to be made on behalf of the children but usually this will only give you the right to live in the property with the children until they are 18 years old.

Will I be classed as my partner’s next of kin?

In practice, hospitals, insurance companies and other agencies and institutions generally only recognise spouses and close blood relatives as next of kin, but not cohabitees. There are things you can do to secure your position though, such as writing mutual Wills or creating a Lasting Power of Attorney. We can help advise on the best way forward for you.

Can my partner force me to leave their home if we split up?

It depends how the house is owned. If you own it jointly, your partner cannot force you out. If the property is owned in your partners sole name you have no right of occupation and no right to remain there. If the home is rented but you are not joint tenants, you also have no right to remain. It is sometimes possible to get short-term rights to stay by applying to the Court, but the best course of action is to sort out ownership or tenancy agreements during your relationship. 

Can my partner force me to sell our home if we split up?

The reason for buying the home was as a home for both parties and if that is no longer the case, the house should be sold. The alternative is for one of you to ‘buy out’ the other’s interest and obtain their release from any joint mortgage liabilities. If you have children you may be able to delay the sale until the children are 18 years old.

If I pay half of the mortgage does my partner have to pay the other half?

A mortgage is a ‘joint and several’ liability. This means that both parties are liable to pay all of the mortgage. The lender is not concerned who pays what as long as it is paid. If one party pays 99%, they can still go after that person for the other 1% and vice versa.  A ‘Living Together Agreement’ could however set out the arrangements you and your partner have agreed for payment of the mortgage.

I have left our jointly owned home and my partner is still living there. Can I get any rent from them?

Until a sale of the property it is possible to seek “occupation rent” from the person who is still in the home.  Often instead, it is agreed that the person who remains pays all of the mortgage repayments. 

I paid the deposit on the joint home I share with my partner so can I get that money back first if we sell it?

If you own as “tenants in common”, unless you have further documentation, you will only receive a half share, regardless of contributions. If you have paid unequal contributions or agree that one of you should have a greater interest than the other, then you should have a Declaration of Trust drawn up, which clearly states the percentage each of you has in the property. 

Do I have to pay for my partner’s debts?  

No. You are not liable for your partner’s or ex-partner’s debts as long as they are in their sole name and you are not a guarantor. 

Can I leave my assets to my partner without making a Will?

If you die without having made a valid Will, your estate will be divided according to the ‘intestacy rules’. This means that a distant relative could inherit your house and all your estate even if you have lived with your partner for years. It is vital to have a valid Will. Your partner would also not be able to access money held in any  bank accounts in your sole name.  

If my partner has died and left me their estate, do I have to pay Inheritance Tax?

If the value of the estate is large enough for Inheritance Tax to be liable, you are not exempt from paying Inheritance Tax unless you are married to the other party or in a civil partnership.

Can I make a Will leaving my share of the home I own with my mother/sister/etc to my partner?

On it’s own, this gift may not be valid. If you own a property jointly you could own as either ‘joint tenants’ or ‘tenants in common’. If you are joint tenants this means that if one of you dies, the other owner automatically inherits the whole of the property. This is irrespective of any provision that you make in a Will. So, if you want someone other than the joint owner to inherit your share, you must either purchase as tenants in common or ‘sever the joint tenancy’.  It is a straightforward procedure to ‘sever’ a joint tenancy.   It is of course also important to ensure you have a valid Will after severance.

Do I have ‘parental rights’ as the father of my partner’s children?

Not necessarily.  If you are not married to the mother and are not named on the birth certificate you have no automatic rights.  This means you do not even have the right to authorise medical treatment. You can obtain parental responsibility and we can advise you how to do this. 

If I have loads of debt do I still have to pay maintenance for my children to my ex-partner?

Yes. The CMS deal with child maintenance and base payments on net income and the only allowable deductions are tax, national insurance contributions and pension payments.  If you have other children living with you, or the children who you pay for stay with you overnight on average one night a week or more this will be taken into account. 

 

As you can see from some of the questions we’re frequently asked, there are a number of things that you should think about when cohabiting. At Atkins Dellow we can help with all the different aspects and will guide you through the many areas you may need to address whether its ownership of property, a Cohabitation Agreement or the drafting of Wills.

There is a lot of confusion around co-habitation and the legal implications of doing so. For more information about what you are agreeing to, what to believe and how to protect yourself contact our team today on 01284 767766.

Where to find us

We have offices in Bury St. Edmunds, Sudbury and London.

Please note this article is provided for general information purposes only to clients and friends of Atkins Dellow LLP. It is not intended to impart legal advice on any matter. Specialist advice should be taken in relation to specific circumstances. Whilst we endeavour to ensure that the information in this article is correct, no warranty, express or implied, is given as to its accuracy, and Atkins Dellow LLP does not accept any liability for error or omission.

© Atkins Dellow LLP 2022

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