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I expect that everyone reading this website is aware that there is no such thing as a common law spouse. Most of us – not unreasonably – dwell very little on what will happen to our estate in the event of our death assuming our wishes will be captured in a will. But what if you have delayed making one or it is out of date, writes Nicholas Barlow, Head of our Private Client team.

My partner Louise Barretto, Head of our Family & Divorce team, has written several times here on the impact of divorce on ‘common law spouses’. But what if staying together is your life plan?

This advice on the Law Society’s website is certainly well worth exploring. Living together without being married or in a civil partnership means you will not have many rights regarding finances, property and children. They’ve helpfully listed a number of likely scenarios. Do any apply to you?

Renting a home together?

When both your names are on the Tenancy Agreement, you are equally responsible for the rent and any other tenancy conditions. So, if you split up and one of you wants to move out, you will need to talk to your landlord or lettings agency to change the tenancy agreement.

Buying property together?

You should agree between you what happens to the property if your relationship ends. Having a Cohabitation Agreement already in place can make it easier to deal with the property and eventual proceeds of sale.

You can buy a freehold or leasehold property as joint tenants, where you own the whole property together, or tenants in common, where you each own a specified share in the property.

As joint tenants, you each own a share in the property and if one of you dies the survivor automatically inherits the property. This cannot be changed by your will.

For tenants in common, ownership could be split equally, or one of you may own a larger share. You might agree this if they pay more of the deposit or mortgage. If you split up, you will be entitled to your specified 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 only your partner owns the property, you will not usually have any rights to reside in the property or to share in the sale proceeds, unless you can prove that you have:

  • contributed to the deposit for the property or the mortgage payments, or
  • made a financial commitment, like paying for major work on the property, with the understanding that you would own a share of the property

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 your partner’s will, you won’t automatically inherit the property if your partner dies.

If you agree that you should both have a share in the property, you can transfer the property into joint names. We can help you do this. For example, we could arrange for you to put in place a Declaration of Trust. Declarations of Trust are documents setting out beneficial interests in a property. They can be simple and just set out how net sale proceeds will be divided or be more comprehensive and set out each party’s rights and responsibilities. If you have a mortgage, lender consent should be obtained.

If the property is only owned by one party, this can significantly impact the survivor’s right to live in the property after the owner’s death. It is therefore important to ensure that the survivor has clearly defined rights in respect of the property and future occupation. If there is a mortgage, arrangements would need to be made to clear the debt, for instance through a suitable life insurance policy.

Medical emergencies and death

Some clients assume after nearly their whole lifetimes together that they would be treated as “next of kin” once their partner became ill, or died. This is not the case unless you and your partner have appropriate documentation in place such as a Lasting Power of Attorney. Without such documentation, you will not have automatic rights to know about their condition, see them in hospital or plan their care options.

If you die and your partner is not your next of kin, you may not have the right to make funeral arrangements.

If you and your partner have separate bank accounts, then on death your partner will not be legally able to access your account. Similarly, your state pension is not automatically passed on to your partner on your death, although different rules apply to company and private pensions.

Unless you are married or in a registered Civil Partnership, you and your partner will not have tax benefits as a couple. If you want to transfer assets, like a house or a significant sum of money, to your partner you may have to pay tax.

Cohabitation agreements and wills

To make sure you and your partner’s interests are protected, you should consider preparing a Cohabitation Agreement and making suitable wills.

As the Law Society website explains, if you are cohabiting and die without a will your partner and their children will not automatically inherit from you. They will only be able to make a claim through Court if:

  • you have been living together for 2 or more years, or
  • they were financially supported by you.

In fact, so far as his children are concerned a father only has parental responsibility if he is named on the child’s birth certificate. For births registered before 1 December 2003, the father will not automatically have parental responsibility even if on the birth certificate. If your partner has a child or children from another relationship, you do not automatically have parental responsibility for them.

Whether or not you have parental responsibility, you have a legal obligation to provide child support if you split up and a Court can order the parent to make payments via the Child Support Agency.

The pandemic produced many obstacles for thousands of people, not least delaying marriage plans for many couples. It is important for unmarried couples living together to understand their position and seek appropriate advice. Taking simple steps can help avoid shock and upset arising from some common misconceptions.

Regardless of how long you have been together, whether or not you have children and how committed your relationship might be, the law treats unmarried couples differently and professional advice should be taken.

If you are affected by similar issues or would like to have a related discussion in confidence, please call me Nicholas Barlow Partner and Head of the Private Client team on 020 7692 7561 or email nbarlow@bishopandsewell.co.uk  

The above is accurate as at 19 October 2021. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.


Category: Blog, News | Date: 19th Oct 2021


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