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The law as it stands therefore shows a number of important distinctions between those who cohabit and live together without getting married, and those who marry. Cohabitees mean any couple who live together and that may include same sex relationships.
Property.
There is no legal right of cohabitees to a share of property belonging to a former partner on the breakup of cohabitation, no matter how long the relationship has lasted. If property is in his name, it belongs to him, and if it is in her name it belongs to her. In divorce, the Court have an unlimited right to vary property ownership. This does not exist between cohabitees. There are however exceptions where for the sake of fairness the Court can vary the ownership rights.
a. Where the property was jointly acquired, and there is evidence to show an intention that it be jointly owned.
b. Where a party directly contributed to the acquisition of the property so as to show an implied intention that it was joint property.
c. If there was an understanding between the parties, and the non-owning partner has acted to his or her detriment in reliance on this understanding. A usual example is payment of the mortgage by one party on a property in the other partners name.
The Home
Unmarried couples when buying a home together should at that time give careful consideration as to how the property should be held, and how the sale proceeds should be divided on sale. The options are to hold the property as beneficial joint tenants or as tenants in common. The decision may be based upon intended contributions to the purchase of the house. The intention is best recorded in a cohabitation agreement.
Maintenance
There is no basic right of maintenance between cohabitees to maintain each other, either during or on the break up of a relationship. The position however is different with children, where a duty is imposed by law to maintain all biological children.
Children.
If the parents of a child are unmarried, then only the mother has any automatic rights in respect of the child. She alone will have parental responsibility for the child. However rights can be acquired by registering the father on the birth certificate. If this is not done, and where the mother agrees, parental responsibility can be established through the signing of a parental responsibility agreement. Where such can not be agreed, it is possible for the father to apply to the Court for a joint parental responsibility order, a contact order or a residence order.
Death of one partner.
If one partner dies intestate [without making a Will], his or her property will pass to their relatives, and not automatically to their former partner. An exception would be property held as beneficial joint tenants. Rights to property can be established under the Family Provision Act.
Disputes over property between unmarried couples are messy, can be most acrimonious, and have every potential to be expensive. However there are a number of things which can be done whilst living together. Whilst not being particularly romantic, they are most sensible, and can lead not only to the avoidance of problems if the relationship ends, but an understanding during the relationship.
a) Co-habitation Agreement. This is a simple record of what was agreed in respect of property, money, and claims against each other when it was decided to set up home together.
b) Make a Will. Each partner should make a Will. If a partner should die without making a Will, his or her property will pass under the intestacy rules, often to a relative, or even a spouse. A Will can always be amended or revoked.
c) Decide how the house is to be held, as Beneficial Joint Tenants, or Tenants in Common. It is more usual for cohabitees to hold as Tenants in Common.
The law relating to cohabitees is quite different from the law relating to married couples so far as property rights are concerned although issues involving children and injunctions are dealt with in broadly similar (although not identical) way.
