Unmarried couples, just like married couples often mix their incomes and assets. They often choose to buy a property together, take out life insurance, raise a family together and make wills passing on their estate to their cohabitee. These arrangements work well and are never questioned until the relationship breaks down and they decide to separate.
There is a myth that unmarried couples have the same legal rights as married couples because they are "common law" husband and wife. Common law marriage does not exist. In reality, upon separation most assets are subject to the strict principles of Land and Trust Law. One way of addressing these issues is to enter into a cohabitation agreement supported by appropriate Will and Estate planning.
To protect your position, if you are cohabiting or about to cohabit with a partner, it is advisable to enter into a cohabitation agreement. Whilst the Court has not recognised that cohabitation agreements are enforceable in every case, providing certain contractual conditions are met, it is likely that an agreement would be upheld if there is a subsequent dispute.
Although entering into a cohabitation agreement cannot cover every eventuality, it can provide an appropriate framework for identifying joint assets and also those areas where no claims can be made should the relationship break down. This can be particularly important if there is a business, house or other substantial asset which was owned by one party before the cohabitation starts. It is also vital that cohabitees are aware of their rights.
There are no automatic rights to a share of assets that are held in a partner's sole name. The only way you can obtain ownership of assets that are in your partner's sole name is by showing you made a contribution towards their purchase or after they were bought.
Married couples automatically have equal parental rights for their children but a cohabiting couple don’t. Father's only have rights if:
- the child was born on or after 5th December 2003 and his name is on the birth certificate; or
- the mother has entered into a parental responsibility agreement with him; or
- the Court has made an order for parental responsibility.
The Court can make exactly the same Orders for residence and contact in relation to the children of cohabitees as they can for married couples.
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