Many couples choose to live together in a relationship without the formality of entering into a marriage or indeed a civil partnership. Up until the enactment of the 2010 Act, couples who cohabited in this way acquired no legal rights against each other, irrespective of the length of time they had lived together. There was no automatic property rights, rights of occupation in the property which was their home, financial support or inheritance rights for cohabitants. This was an entirely unsatisfactory situation and the position has been greatly improved by the introduction of the 2010 Act.
A cohabitant is defined as one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other. In determining whether or not two adults are cohabitants for the purposes of the legislation, the court will take into account all the circumstances of the relationship.
The Act does not apply to relationships that ended before January 1st, 2011, although time spent living together prior to that date is counted in determining whether a person is a qualified cohabitant from January 2011 onwards.
The cohabitant’s section of the Act is divided into two distinct parts:-
Cohabitants Contracts and;
The Redress scheme.
Cohabitants Agreements- how can this protect you in the event the relationship breaks down?
In an important departure from the legal position prevailing pre-2011, the Act provides that, notwithstanding any enactment or rule of law, cohabitants may enter into legally binding agreements governing their property and financial interests during the relationship or when the relationship ends whether through death or otherwise. “A cohabitant’s agreement will only be valid if certain legal requirements are complied with.
The purpose behind such Cohabitants Contracts is to encourage couples who do not wish to marry or enter into a Civil Partnership, to take responsibility for their own living arrangements while living together and to provide for how financial and property matters are to be dealt with in the event that the relationship breaks down due the death of one of the parties, or otherwise.
What is the Cohabitants Redress Scheme?
An enhanced “redress scheme” applies to “qualified cohabitants”, defined as cohabitants who have lived together for at least five years, or two years if they have had a child together. Where either cohabitant is married, neither cohabitant will be treated as a qualified cohabitant unless the married cohabitant has lived apart from his spouse for four of the previous five years.
Under the redress scheme for qualified cohabitants, a court may make various orders if the parties’ relationship ends. To avail of these orders, however, a qualified cohabitant must demonstrate financial dependence. An applicant with sufficient independent means will likely be denied relief.
Various types of court order are available to financially dependent qualified cohabitants following the end of a relationship. These orders must generally be sought within two years of the relationship ending, by death otherwise. The applicant may seek maintenance to be paid either periodically or in a lump sum. The court may also make a Pension Adjustment Order allocating part of a qualified cohabitant’s pension entitlements to the applicant. Additionally, the court may make Property Adjustment Orders and reassign property, though only if maintenance and pension adjustment orders would not be sufficient to address the applicant’s needs. Finally, in certain circumstances, application may be made to the Court for provision from the estate of a deceased cohabitant.
There is no automatic right to redress. Whether and to what extent relief will be granted will depend, in particular, on the needs, resources and other obligations of each party.Notably, couples may opt out of the qualified cohabitants redress scheme by entering into a written cohabitation agreement, although careful steps are required to ensure such agreements are valid.
Co-habiting Couples and their rights vis-à-vis their children
The Children and Family Relationships Act 2015 has made important changes in the law with regard to parents who are not married to each other and who cohabit.
An unmarried father who lives with the mother for at least 12 months (9 before birth and 3 afterwards) is automatically a guardian.
A person who is not a parent of a child but who is cohabitating with a parent of a child can apply to the court for guardianship and/or custody.
A cohabiting couple who have lived together for at least 3 years can apply to adopt a child together (section not yet commenced). Previously, only married couples could apply to jointly adopt a child.
Do co-habiting couples acquire inheritance rights?
If you are married or in a civil partnership, the Succession Act 1965 gives your surviving spouse/civil partner a legal right to a share of your estate when you die, no matter what you have said or specified in your will. This does not apply to cohabiting couples. In other words, if you are in a cohabiting relationship, there is nothing to prevent you from leaving some or all of your property to your partner in your will.
However, if you are or have been married or in a civil partnership, your spouse/civil partner may be legally entitled to a share of your estate even though you are now separated from him/her.
If you are in a cohabiting relationship and you die without a will, your partner has no right to any share of the estate no matter how long you have been together, apart from what was held jointly. Many people are not aware of this, so it is very important to know your rights in this situation.
Under the redress scheme for cohabiting couples a qualified cohabitant may apply for provision to be made from the estate of a deceased cohabitant. Where the partner dies in an existing relationship, it is not necessary to show financial dependence.
Making a will can ensure that proper arrangements are in place for your dependants and that your property is distributed in the way you wish after you die, subject to certain rights of spouses/civil partners and children. At Carter Anhold & Co,. Solicitors, one of our experienced Solicitors can assist you in preparing a Will and advise you of the the legalities in respect of same.
How can we help?
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 has brought about significant changes in relation to the legal rights of cohabiting couples. While the legislation does not afford the same protection to cohabiting couples as currently exists in respect of married couples and civil partners, it certainly has improved the position. Living together now has significant legal implications and it is essential that couples who decide to live together seek legal advice to ensure they are fully aware of the legal consequences in respect of same.
Contact Carter Anhold & Co., Solicitors today and one of our experienced Solicitors will be happy to assist you in relation to your queries.
Marie Conway
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