Middle-aged people are increasingly choosing to live together rather than get married. This is especially noticeable within the 50-64 age group of people who have never married, where cohabitating relationships are increasing year on year. In 2002, just 6.1% of those in the 50-64 age group who had never married were in a cohabiting relationship. However, in 2017, this figure rose sharply to 12.9%. 1
Family law solicitors are explaining that the increase is most likely due to fears held by one or both parties that, if they marry, they would lose a substantial amount of their assets and wealth in a future divorce settlement.
Cohabiting couples are not afforded the same legal protection as married couples in the event of the relationship ending. The myth of common-law marriage persists and often leads unmarried couples to wrongly assume they will be able to claim a share of assets owned by their partner should they separate. When an unmarried couple separate, they will each keep any assets and bank accounts that are in their own names. If there are any jointly owned assets, then the law will assume that each party has an equal share of ownership and that the assets should be shared accordingly. Some provision is made for couples with young children under section 1 of The Children Act 1989 – but this offers no permanent solution for the parent living with the children.
There are many reasons why some couples choose not to marry, but it is important that couples in cohabitating relationships understand the lack of legislation to protect them if the relationship ends. There are, however, a number of measures that couples can take to ensure they protect themselves in the event of a separation or a death.
Buying a House together
Unmarried couples considering buying a house together should decide on whether they wish to own the property as joint tenants or tenants-in-common. The advantage of owning a property as joint tenants is that, should one partner die, the other partner will automatically inherit the deceased’s partner’s half of the house. If a couple owns a property as tenants-in-common, then each partner is free to leave their share of the house to whomever they wish after they die. For more information on joint ownership of property, please see here – joint property in probate.
Cohabitation agreements (sometimes called a Living Together Agreement) can be entered into at any time, even if the couple have been living together for years. The agreement should set out exactly what would happen to the assets should the couple separate. The agreement can also cover what the financial settlement would be on the ending of the relationship. The agreement will only be legally binding if it is written as a legal deed, and it should be written by a solicitor who specialises in such documents.
Make a Will
Unmarried partners are not included in the rules of intestacy and neither are any of their children from a previous relationship – even if the children had lived as children of the family with both parties. They would be particularly vulnerable in such a situation. It is vital that couples get Wills drawn up to ensure that their partner would be either left the family home or at the very least be able to remain in the home for a specified period of time. It is possible to bestow a life interest in a property, meaning the partner can remain in their home for the duration of their life.
Inheritance Tax Planning
Unmarried couples are not given the same advantages as married couples when it comes to Inheritance Tax; for example, they are not able to take advantage of the spouse exemption. However, they can still benefit from the residence nil-rate band, but are not be able to transfer any unused RNRB to each other. It is sensible to take expert advice on Inheritance Tax planning to discuss the best action to take.
If you and your partner have decided not to get married, it's important to understand all the possible issues that can arise out of your situation, and an experienced solicitor can provide you with the right guidance. If you would like to speak to a specialist lawyer about any of the options suggested here to help ensure you're well protected in the event of separation or death of a cohabiting partner, please call Oratto on 0845 388 3765 or send us an email at firstname.lastname@example.org, and we can find the right legal help for you.
1 – Figures from the Office of National Statistics’ statistical bulletin “Population estimates by marital status and living arrangements, England and Wales: 2002 to 2017”