Safeguarding Your Property Rights
Despite the ‘common law” marriage myth, it is possible to live together with your partner and have children together and then walk away without taking any financial responsibility for each other. In many cases this creates financial hardship for families who chose to live together and not marry.
The laws in this area are complex and out of date.
“Prevention is better than cure!”
We advise you consult us at an early stage so we can help protect you, your property and your family before or whilst living together. You can draw up a legal agreement called a Living Together Agreement or a Cohabitation Agreement, to formalise aspects of your relationship. Be careful though - it’s not clear whether living together agreements are legally enforceable, but you can always draw up legally enforceable agreements on specific matters such as a jointly-owned home. Referred to as a Declaration of Trust or a Trust Deed
Ask about our Living Together Protection Package for a Fixed Fee.
There are some things you might like to consider if you are living together:
If you have separate bank accounts and one of you dies then the money in that account becomes part of your deceased partner’s estate and cannot be used until the estate is settled, even if the money is yours to inherit as part of your partner’s will.
If you have a joint account then, if one of you dies, the other has complete access to it. On the other hand, if you separate then you need to be careful that the other partner does not access the funds or run up an overdraft on the account for which you will be liable.
If you are living together and have children then you have parental responsibility if:
- You are the child’s birth mother
- You are the child’s father and your name is on the child’s birth certificate (for births registered after 1/12/03)
- You subsequently marry the child’s mother
- You enter into a Parental Responsibility Agreement
- You get a Parental Responsibility Order from the court
If you separate you can make an informal arrangement between yourselves for contact with the children. If you can’t reach agreement then you can apply to the court for a child arrangements order but you would usually be required to attempt mediation with a Family mediator before issuing court proceedings in the hope that agreement can be reached unless there is a very good reason not to attend mediation.
As parents you are both financially responsible for supporting your children, whether you are married, in a civil partnership, living together or are separated. As a father you have financial responsibilities even if you are not named on the child’s birth certificate; the same is true if you are a mother and if your child lives with their father.
If your partner does not have a will and dies then you, as the surviving partner will not automatically inherit anything, apart from jointly owned property. Each partner has to make a will if they want the other partner to inherit anything. If you do inherit property or money then, unlike with married couples, you will not be exempt from Inheritance Tax., assuming that the value of your estate exceeds the inheritance tax threshold.
If your partner dies with debts in their name only then you have no liability for those debts, unless you acted as guarantor. You may be responsible for debts in joint names.
If you are the unmarried partner of a tenant then you normally have no rights to stay in the property if the tenant asks you to leave, so joint tenancy is usually preferable.
If you are unmarried and own a home then things can get complicated. If you are the sole owner then you have the right to stay in the home, although your partner might be able to claim a ‘beneficial interest’. However, if you don’t own the home, you might be asked to leave.
If you own a property jointly, there are two different ways of holding that property. These are as Beneficial Joint Tenants or Tenants in Common. The most common but not necessarily the most advisable is to hold the property as Beneficial Joint Tenants. You are each deemed to have a 50% share of the property. The effect of this is that if you dies your partner will inherit your share in the property and will retain their own share.
The other option is to hold the property as tenants in common. If you choose this option then you can either hold the property in equal or unequal shares. This may be a suitable arrangement if one of you is investing more money in a property than the other. If you hold a property as tenants in common, if one of you dies then the deceased person’s share of the property does not pass to the surviving partner. It is therefore imperative that you both make a will so that you can ensure that your chosen beneficiaries benefit from your share of the property in the event of your death. This could be your partner or it could be others such as children from a previous relationship or other family members. If you do not make a will, your share will pass to your next of kin in the event of your death. This may not be what you intended.
If you have children then there are further complications as in some circumstances it is possible to delay a sale of a property if you have dependent children who are living in it.
Unlike a married couple, if you are living together you will not automatically be recognised as next of kin - it all depends on the organisation you are dealing with, such as a hospital or insurance company.