What is cohabitation?

If you are in an opposite-sex relationship, your rights as a partner depend on whether you are married or living together. Living together with someone is also referred to as cohabitation. In general, you will have fewer rights if you are living together than if you are married.

This information covers co-habiting relationships, as described above. It doesn't cover lesbian and gay partners who, as the law currently stands, can't get married but can enter into a civil partnership.

Making a legal agreement

It is possible to formalise a relationship by drawing up a legal agreement called cohabitation or living together agreement. This agreement outlines the rights and obligations of each partner towards the other.  Such an agreement serves to outline a couple’s original intentions and can help to mediate a solution in the case of the relationship ending. To maximise the chances that the agreements are enforceable, both parties should take independent legal advice and must be open and honest about each of their individual financial positions when entering into any such agreement.

How can you protect yourself?

Instead of a living together agreement, it is advisable to make a series of legally enforceable agreements on specific matters such as the ownership of property. For example, an individual has well-established legal rights if he or she is a joint tenant and is named on the property deeds and mortgage documents. 

What happens if someone dies?

There is no such thing in law as a ‘common law’ spouse, so it is important that people living together give thought to protecting their position.

In the absence of a Will, if one member of a cohabiting couple dies, it can come as an unpleasant surprise to the surviving partner to discover that their late partner’s estate will not pass automatically to them. Where there are assets, such as property or bank accounts, which are jointly held, these will pass by survivorship to the other partner. Also, if there is a life assurance policy or there are pension benefits payable to a nominated person, then the surviving partner will receive these if he or she is the named beneficiary.

However, once such assets have been dealt with the rules of intestacy apply if there is no Will.  Using a complex formula regarding its division, an intestate estate passes to the relatives of the deceased. This will often leave the deceased’s partner with nothing at all.

Making a claim on a deceased partner’s estate

The law does allow a claim for provision to be made from the estate of the deceased by dependants if they are persons for whom the intestate person might reasonably have been expected to make provision.

In addition, a surviving cohabitee can make a claim if the deceased died intestate or failed to provide for them in the Will if:

• they were maintained by the deceased immediately before the death of the deceased; or

• for two years prior to the death of the deceased they lived in the same household as the deceased as if they were the husband, wife or civil partner of the deceased.

In such cases the court may be requested to make ‘reasonable provision’ for the applicant. There are a series of guidelines to ensure that the provision is fair, bearing in mind the size of the estate and the circumstances of those with an interest in it.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.