Cohabitation Q and A

What property rights do cohabiting couples have after a break up?
The rights are determined on property law principles and are not rights that arise because the couple are in a relationship. They are not comparable to the rights for married couples. Claims are very much restricted to property-related matters: there is no maintenance and no such thing as a ‘common-law marriage’.
Claims in relation to property are determined by looking at the financial contributions of the parties and what they agreed regarding the ownership of the property. The courts have moved with the times and increasingly recognise the needs for a fairer and more flexible interpretation of the law. However, the law is incredibly complex and it is difficult, if not impossible, to really ever be certain as to what a person is entitled to.

How has the Supreme Court judgment on Kernott v Jones changed rights for cohabiting couples?
Today’s judgment appears to move the law for cohabitation towards fairness generally. However, it is still based upon a minute assessment of the couple’s relationship and what they did and did not agree. The law remains a mess, and leaves people and children in vulnerable positions. The Supreme Court is endeavouring to tackle the archaic state of the law as best it can, however urgent reform is required.

How does this compare to married couples?
Marriage and divorce law is also complex but there are clear structures and guidelines for couples. Importantly, the court has an overriding duty to search for fairness, and should always try to ensure that as a minimum each party’s needs are met, with the most important consideration being the needs of any children. Because of the rigid application of property law principles to cohabitation cases, often one party will be left in a situation where their needs are not met and there is nothing that the courts can do to remedy this.

Read more: Cohabitees gain some legal ground after landmark ruling

Does the length of time a couple have lived together make a difference?
Having a long relationship doesn’t give you any greater or lesser rights in itself. However, it may influence the way a couple has organised their finances and property ownership.

What about after death?
A person is not automatically entitled to inherit a house or anything else simply because they are in a relationship.
If you own part of a house and your co-owner dies, you will continue to own your share. Whether or not you inherit the other person’s share depends on how the property is owned and the terms of any will. If the property is owned in a certain manner (as joint tenants) then the other share may be inherited automatically. If the property is otherwise owned (either in joint names but as something called ‘tenants in common’ or in only one name) then the Will or the rules of intestacy (where there is no Will) apply and it may not pass to the surviving partner.

Because of the rigid application of property law principles to cohabitation cases, often one party will be left in a situation where their needs are not met and there is nothing that the courts can do to remedy this.

Can cohabiting partners put anything in place to safeguard rights to property following a break-up?
Yes. If a couple enter an agreement about what they what to happen if they break up or one of them dies, then this agreement is binding. This can help avoid later heartache, uncertainty and legal costs. Even if a couple have not done so they should always seek to reach agreement without recourse to the courts.

Do cohabiting partners have same rights as married couples to children following a break-up?
The legal rights and responsibilities relating to parents’ relationship with their children are pretty much the same irrespective of whether or not the parents are married. As regards money, the law does provide financial support for children of unmarried couples, but again this is not assessed in the same manner as if the parents were married.

Has there been any recent, relevant government policy decisions in relation to marriage or cohabitation?
The government has yet again declined to consider whether cohabitation law should be reformed. This is despite calls for reform from the Law Society and the Law Commission and almost every group that works with families experiencing relationship breakdown.
Unfortunately, this is probably most reflective of the government’s concern about the misplaced perception that providing rights and protections to cohabiting couples somehow undermines the institution of marriage.

What tax breaks do marriage couples get that cohabiting couples don’t?
The biggest saving is in relation to inheritance tax upon the death. Married couples enjoy a complete exemption in relation to all assets passing to the survivor. The survivor of an unmarried couple has no such exemption and the estate of the deceased in these circumstances will pay tax at 40 per cent on all the estate that passes to the survivor over the nil rate band which is presently £325,000.