Do unmarried couples have legal rights if they split up or if one of them dies? What happens to their children, house and assets? Frettens' Family Team provides some information on how unmarried couples can protect themselves and prepare for the future should the worst happen.

Do unmarried couples have legal rights?

Many unmarried couples who have jointly contributed to the finances and responsiblities of running a home and bringing up children, expect that if the relationship ends, they will have similar rights to married couples. This is not the case.

We are often approached by people in this situation. Here is some constructive advice on cohabitation agreements, which can be extremely beneficial for couples who don’t plan to marry.

Who would find a co-habitation agreement useful?

Anyone who lives with someone but is not married to them (or civil partners if they are a gay couple). Cohabitation Agreements are drawn up when a couple choose not to marry, but want to regulate clearly their property rights and arrangements for mutual financial support, dealing with debts, looking after children etc. Without one, you have very few legal rights if your relationship comes to an end.

Will I not be considered a “Common law” husband or wife?

Although this is a well known phrase, the term is not recognised by the legal system. If you are not married, in the eyes of the law there is no special relationship – you will not be considered as the equivalent of a husband or wife, even if you have children or lived together for many years.

What happens if my partner dies?

Without a cohabitation agreement, unmarried partners face various obstacles if one of them dies:

• the law makes no provision for the bereaved person to inherit from their partner;
• the surviving partner is not exempt from Inheritance Tax as a spouse would be; and
• to receive anything at all, the surviving partner may have to go to court to show that they co-owned assets (in some cases paid for by both partners but owned in one name only).

A cohabitation agreement makes it clear what they intended to happen with their assets and this is fervently regarded by the courts.

Is a cohabitation agreement legally binding?

This depends on the nature and the subject matter of the agreement. If it deals with financial matters, the court may be unlikely to interfere. If it relates to children, it's likely to be viewed as an expression of wish only. A good cohabitation agreement will generally be enforced by the court.

What is in a 'good' cohabitation agreement?

It should be entered into freely by both parties after a frank exchange of relevant financial information and without duress on either side. They contain:

• a statement about the purpose of the contract;
• your personal details with a disclosure of your financial position and your current state of health;
• how you intend to deal with any property owned before the relationship and or acquired during the relationship;
• income / expenses - whether you will pool your income or keep separate accounts, whether either of you will support the other if he/she stops working and for how long;
• children - whether you plan to have any, how you want them to be educated etc;
• inheritance and wills - what you plan to leave to each other;
• changes - what happens if either of you wants to change the contract or if you separate; and
• extras - a cohabitation contract is a relatively informal document, so you can customise it to your own requirements.

How much does a co-habitation agreement cost?

The cost will depend on the complexity of the agreement you wish to enter into. At Frettens, we always give an estimate at the initial meeting. Typically, it would cost from £300.

If I’m unmarried but have been making payments to a mortgage that is not held in my name, what happens if we split up?

This is a very difficult position and it is an uphill struggle to get any share of the property in the event of a split. You cannot make a claim against your partner and you have to use more complicated property laws to try to get a share. This is where a cohabitation agreement can clarify both partners’ intentions and record that in writing.

On the flip side, how can I protect my assets from a new partner?

There is no cast iron guarantee that you can protect your personal assets, but a cohabitation agreement will help if you intend not to marry, or a pre-nuptial agreement will help if you will marry one day.

What is a pre-nuptial agreement?

This is an agreement made between a couple before they marry, detailing with how their assets and resources would be treated if they were to divorce. They can be useful for any couple, not just the rich and famous. Pre-nuptial agreements are now more common and being given increasing recognition by the courts in divorce cases, however, they remain only one of many factors that the divorce courts are obliged to consider. They are particularly useful for second marriages. More on Pre-nuptial agreements.

What is a co-habitation agreement?

A co-habitation agreement is a written agreement between people who live together about their assets and financial arrangements. It makes it clear who owns what and sets out how assets would be divided, should they separate in the future. They are an easy and relatively inexpensive solution to help protect your interests if the relationship ends and help to minimise court intervention. If a dispute arises while separating, this agreement becomes evidence of what you both intended. It can give both partners peace of mind, security and time to concentrate on enjoying the relationship.

Frettens advise unmarried couples that it is sensible to legally document arrangements dealing with difficult situations should they arise in the future. Discussing topics like death, breaking up and illness can be awkward. The temptation to avoid it is understandable! But, talking about the terms of an agreement early on can be an indicator of a relationship that is mature enough to work through major decisions. Think of it as a safety measure in case the worst happens, similar to making a will.

Book a Free Appointment

Frettens are pleased to offer a free initial consultation for all new clients. We have always offered this service because we recognise the importance for clients of deciding whether they can work with a particular solicitor and to find out more about the process and likely outcome. Our family lawyers offer positive, down to earth advice, and we hope that this initial meeting allows you the time to see this as well.

Contact a member of our Family Team to arrange a free initial appointment at either our Christchurch or New Forest office, where you will be able to meet your solicitor with no obligation or charge.