Q. What is cohabitation?
A: This is not a clear, legal definition, but if you live with someone and are not legally married to them or in a civil partnership with them, you are cohabiting.
Q. Am I in a “common law marriage”?
A: No. Common law marriage does not exist. If you are living together but are not married then you are Cohabiting, as described above.
Q. I am Cohabiting, how can I protect my rights?
A: It is advisable to have a written agreement with your partner as to how things will be divided between you if you separate. If you own a property together, you may be advised to draw up a Deed of Trust which sets out your interests in that property and what you will do in the event that you separate. However, a Cohabitation Agreement can go further and deal with other assets and issues.
Q. As a father, do I automatically have Parental Responsibility for my children?
A: A natural mother will immediately have Parental Responsibility for any child from birth. If the natural father is married to the mother at the time of the birth, he also has Parental Responsibility automatically. However, if the natural father is not married to the mother, they will only have Parental Responsibility if they are named on the birth certificate after 1st December 2003. In other circumstances, or if you are another party you may be able to obtain Parental Responsibility through an Agreement, or by an order of the court. For more information about how to obtain Parental Responsibility please see the relevant FAQ’s on the subject of Children
Q. Can I claim maintenance from my partner?
A: Not for yourself – even if you were dependent upon them. If you are the main carer of any children from the relationship, you would normally be entitled to maintenance for the child(ren) whilst the child is aged under 18 and/or in full-time education. If the amount to be paid cannot be agreed, you will need to ask the CMS (Child Maintenance Service) to make an assessment
Q. Now that we have separated, can I be forced to sell my home?
A: Yes. The court has powers to both force, and stop, the sale of a property. The court’s decision will depend on a number of factors such as:
• firstly, whether there are any children to be housed, and if so, the needs and any disability of those children;
• what interest you and your each partner have in the home;
• the financial position of you and your partner (for example could one of you afford to take over any existing mortgage and buy out the other’s interest in the property); and
• whether there is a mortgage on the property
Q. If our home is owned jointly, does this mean I will definitely get 50% of the net proceeds of any sale?
A: No. The court would have to take into account a number of factors to decide what interest you have in the property such as:
• whether there are children to be housed, and if so, the financial position of each of you as their parents;
• whether you hold the property as Joint Tenants or Tenants in Common;
• whether there is any document (or other evidence) showing what interest it was intended you would each have in the property, e.g. a Deed of Trust; and
• what financial contribution you each made to the purchase and upkeep of the property (including making mortgage payments)
Q. Can I make a claim against my partner’s pension?
A: No. This would only have been possible if you had been married.
Q. Do we have to go to court to resolve all the outstanding issues between us?
A: Not at all. Court is a last resort for when negotiation has failed or when emergency action is needed. Using litigation often causes delay and can be very costly. Therefore it is important to initially narrow down what is in dispute and then try to negotiate a fair settlement. You will need expert legal advice to do this, but may also benefit from the assistance of mediation or the Collaborative approach. Please see our separate pages on these subjects.
Q. If my partner and I enter into a Cohabitation Agreement, is it binding on us?
A: It can be, if you both had independent legal advice when the document was drawn up and none of your circumstances have changed substantially since you signed it. Even if it is no longer absolutely binding on you both, it is still evidence of what your intentions were in respect of any property or assets, and will therefore be taken into consideration by the court.
Q. What happens if I am not mentioned in my partner’s will?
A: On their death, you could be forced to move out of your home if it is registered only in their name. Even if it is in joint names, you may end up having to sell your home if their share does not automatically pass to you and they have not given you a life interest in the property. You may have to make a formal claim against your partner’s estate to get financial assistance – such as maintenance and somewhere to live. To avoid these difficulties, it is advisable to discuss the arrangements with your partner and seek the advice of a solicitor.