The rise in civil partnerships and why cohabitation agreements are more important than ever

Many cohabiting couples are still misinformed as to their legal rights and that a cohabitation agreement can help resolve this.

This article explores some of the misconceptions where cohabitation, civil partnerships and marriage is concerned. We discuss the importance of cohabitation agreements for those living together or in legally recognised civil partnerships and where a relationship problem results in the partners going their own way.

Society today is faced with many growing pressures and challenges, from the basic cost of living, changing working practices, evolving societal values, Brexit, Covid, global unrest, the list seems endless. The impact of each is unique to those experiencing it, with many experiencing some form of mental health impact as a result. The overall effect though, is the potential for pressure and stress within a family unit; a problem that can lead to relationship breakdowns and ultimately those involved finding out where their relationship stands legally and what rights they can expect in reality.

Common terminology and misconceptions

A survey carried out a few years ago by NatCen (a society research company), showed that around half of those surveyed thought that people living together in unmarried relationships, often referred to as ‘common law marriages’, had the same or similar rights to those in recognised marriages. This thinking underlines two important problems with how the legal rights of ‘cohabiting couples’ are understood.  The first is one of circumstance; too many people don’t understand the legal situation concerning ‘living together’ or ‘cohabiting’  and the jeopardy they may be in should a relationship fail. Secondly, there is too little awareness that this situation can be rectified by putting in place a suitable ‘cohabitation agreement’.

Common law marriage doesn’t exit in England and Wales

It’s a term often heard from those adults choosing to live together rather than opt for a legally recognised relationship. Unfortunately, living together or ‘cohabiting’ doesn’t grant any specific legal status to such couples and is not recognised in England and Wales. The same is true for Scotland, but there is provision for what’s referred to as an ‘irregular marriage’ and called ‘ marriage by cohabitation with habit and repute’ – this may apply to those couples who have lived together and believe they were in essence, married. However, Scotland’s laws are not considered here.

What are the differences between cohabitation and civil partnerships?

Cohabitation or living together.

With the busy and often complex lives we live today, it’s no wonder those that place no special value on more formal marriage proceedings, chose to live simply by just living together. There may be some intention in the future to ‘finally get married’, but the reality is, many people simply do not.

Between 1996 and 2020 the number of opposite-sex couples cohabiting grew from 1.5 million to around 3.4 million – that’s around 21% of couples cohabiting, up from 10% in 1996. Furthermore, in 2020 there were around 1.3 million cohabiting couples with dependent children.

The increase in same-sex couples cohabiting was considerably more dramatic. Although a smaller number, such relationships grew from 16,000 to 120,000 – that’s an increase of 650%.

Cohabitation affords no special rights, no matter how long a couple has lived together. Upon separation, there are no specific rights to share ownership of assets. The same is true for ongoing support and maintenance. This is true, even if one party chose to give up work to become the homemaker or look after any children involved. Naturally, this situation can lead to problems, potentially leaving one party extremely vulnerable.

If nearly half of these families believe incorrectly that they have the same or similar rights to those in recognised relationships, there’s a significant problem brewing should those relationships start to break down. At some point one of the parties will become aware that their situation is quite tenuous. This is why it’s incredibly important for couples living together to be aware of the legal situation they may find themselves in and take action by formalising their relationship is one of the ways outlined and available to them – civil partnership of marriage, or by drawing up a ‘cohabitation agreement’.

Civil partnerships

Introduced in 2005, civil partnerships provided legal recognition to couples in a same-sex relationship and affording them similar rights to married opposite sex couples. However this created an odd situation which meant that opposite sex couples had only a single choice in forming a recognised relationship, that of marriage. In 2019 civil partnerships were extended and now opposite sex couples can choose between a civil partnership or marriage.

Unlike a marriage formed by vows, a civil partnership is created by signing a contract – a civil partnership document. Civil partnerships can be ended through a process called ‘dissolution’ which is not that different from divorce.

Partners in a civil partnership share almost identical rights to those in a marriage in that upon separation financial considerations, inheritance, tax entitlements and estate assets all form part of the rights and obligations.

Again, it is often a mistaken belief that a civil partnership creates some for of common-law spouse. This is not true, a civil partnership is legally documented and recognised, whereas a common-law partnership is simply not recognised in England and Wales.

Differences between civil partnerships and marriages

A very useful explanation of the key differences between same-sex, opposite-sex, married, and civil partnerships can be found as a table from the government website. It outlines the key differences from an administrative perspective,  entering into a relationship, getting a relationship annulled, divorced or obtaining a dissolution. Also, it considers what happens to your state pension upon death or separation. Just follow the link here.

What is a cohabitation agreement and why is it important to have one?

cohabitation agreementNot every couple ‘living together’ will be ready to formalise their relationship, some may never do, but without some form of agreement between each other, not matter if it’s an opposite sex or same-sex marriage, each party is potentially vulnerable should the relationship breakdown. In short, there’s no legal requirement to support each other after separation. There’s no automatic share of ownership over savings, property, possessions, investments, etc. If you owned something prior to the relationship, you still own it. If you bought something together, there’s shared ownership based on contribution. Gifts are owned by those in receipt of the gift.

Particular issues arise around debt. For instance, debt on a joint credit card is the responsibility of both parties. If one party fails to pay, the other may also be pursued for the full amount. This is similarly true for other household debts. Some unfortunate partners find out after the fact that their partner has debt problems they failed to share with them, and where the debt was drawn from a credit card or bank account set up in joint names.

This is where a ‘Cohabitation Agreement’ becomes valuable. A cohabitation agreement is a form of contract that clearly outlines shared responsibilities and what happens to assets and debts upon separation and any contributions to be made by either partner.

Cohabitation agreements are very useful where children and property are involved, as they can specify the responsibility towards the children, or not, of each partner. Similarly, if one partner purchased a home, it can outline the rights of the other partner post separation, such as a share in its sale, or rights to continue to live there while they transition.

Interestingly, where children are involved, cohabiting couples are treated in a similar way to married couples, such as issues with childcare arrangements, who the children should live with, maintenance etc.

Death of a cohabiting partner

Unlike married partners, cohabiting partners have no automatic rights to inherit the estate of the deceased partner – unless they are specifically named as beneficiaries in a Will – another important reason to make a will!

You may make a claim on your partner’s estate if you can show you have lived together as ‘man and wife’ for at least two years and that you can prove you were financially dependent on them. This is true even if you are not named as a beneficiary in the will.

Your home may also be at risk if your partner dies, depending upon the form of legal ownership you had in place. If you owned the home as ‘joint tenants’, then you would continue to own the whole home. If however, you were ‘tenants in common’, the deceased partner’s share would fall within the scope of any will left.

State pension and benefits, such as the ‘Bereavement Support Payment’ will not be available to the surviving partner, meaning they could endure significant financial hardship at a time when they need it the most.

Things to consider before drawing up a cohabitation agreement

It might be useful at this point if you do wish to enter into a cohabitation agreement to think of your position as being married and how you’d want your assets divided should you die or become separated. Think of it a little like a will and a separation agreement. Your assets will likely include:

  • Your home or other property
  • Investments in stocks, shares, crypto currencies
  • Your pension(s)
  • Any savings you have between you or jointly.
  • Personal possessions, such as jewellery, hifi, cameras, computer equipment, furniture, cars.

Liabilities are a significant consideration too, even children could be considered a financial liability of one partner passes on, even though it may be a responsibility you’d welcome. Other liabilities and responsibilities may include:

  • Debts
  • Rent payments
  • Mortgage payments
  • Education fees
  • Hire purchase / lease agreements

It’s not a great way to spend a day planning for failure, but it is a reality a couple shouldn’t ignore. In short, enter this with your eyes fully open, imagine the circumstances should you decide to part ways or should one partner die – or even if both partners die, particularly if there are children involved.

List them all out in a spreadsheet prior to contacting a solicitor like Foys Solicitors. This will make the whole process flow a lot more smoothly. You may also ask the solicitor to help in valuing your assets.

Can I use a free cohabitation template available online?

You could, be beware though; while these templates may provide some flexibility, it’s important to remember that each relationship is unique, as are your circumstances. It’s tempting to use a ‘one size fits all’ type of template cohabitation agreement, but it’s best if it is created to accurately reflect the personal circumstances of your specific relationship. A solicitor expert in the intricacies of cohabitation agreements will help you create an agreement that matches your exact needs. This is especially important if you have considerable assets and if children are involved.

One last point to bear in mind. The cohabitation or ‘living together agreement’ should protect both your interests and reflect that which you both want to happen.

Finally, if you don’t have a will, either of you, arrange to have one drawn up as soon as possible. Foys Solicitors can assist with that too!

Are you cohabiting and want to protect your future rights? Talk to the experts at Foys Solicitors today.

Foys Solicitors have been practising family law in the Doncaster, Sheffield, and Rotherham areas for decades. We’ve assisted countless families through the best and worst of times. You can always guarantee a warm, receptive and sympathetic welcome when discussing personal issues as cohabitation agreements or if one doesn’t exist how we may assist resolve difficult and traumatic separation issues.

Call one of our family law team today at an office nearest you or on our main Doncaster office number: 01302 327 136 who will put you in contact with the most appropriate solicitor. Alternatively, reach out via our contact form.

Note: This article is intended as an awareness piece and does not constitute legal advice – always consult a solicitor before making important legal decisions.

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