News & Insights: Property

Cohabiting – Know your rights

31 October 2018

Recent ONS figures report that there are approximately 3.3 million cohabiting couples in the UK, 1.2 of them with children, making co-habiting the fasted growing family type.

Last month’s landmark Supreme Court decision in the case of Siobhan McLaughlin and her family is therefore likely to have potentially significant ramifications for unmarried couples.

In summary, Ms. McLaughlin lived with her partner for 23 years in their family home before he tragically died in January 2014. As Ms McLaughlin was not married to Mr Adams or in a civil partnership at the time of his passing, she was refused Widowed Parent’s Allowance, a contributory, non-means-tested, social security benefit payable to men and women with dependent children, widowed before March 2017.

Ms. McLaughlin appealed the decision on the grounds of unlawful discrimination based on her marital status. After an initial hearing by the Supreme Court on April 30th this year, in August the Court ruled in favour of Ms. McLaughlin, stating that the current law on the allowance is “incompatible” with Human Rights legislation.

Lady Hale in her decision explained that the allowance “exists because of the responsibilities of the deceased and the survivor towards their children” and these responsibilities remain the same “whether or not they are married to or in a civil partnership with one another”, however that it will be the responsibility of the Government to decide whether or how the law is changed.

This ruling could have profound implications for the way cohabiting couples are treated in future and puts pressure on ministers to change the rules, potentially benefiting thousands of families.

The death of a partner is a highly stressful and emotional time. It is the norm that many cohabiting couples will not seek legal advice until such time as tragedy or conflict arises. As such it is important to know your rights generally in relation to cohabitation should the worst happen.

For many, a house is the single most valuable asset. If you are living in a property owned solely by your partner you may not have any right to that property should they pass away or you were to separate. It is not the case that the longer you are together, the more rights you acquire.

Depending on what financial arrangements you have in place, you may be left with no alternative but to sell the family home and, worst-case scenario, your family could end up homeless. Such stress can be avoided by putting a will in place which states your wishes.

Cohabiters should also be aware that should they pass away without a will, they would die intestate, meaning their partner would not inherit any assets held in their sole name. Instead, these would pass directly to their children or extended family. This can cause a family significant financial difficulty.

This situation becomes even more prevalent if you are divorced and cohabiting with your new partner, children and their children.

If there is a breakdown of a relationship cohabiting couples can have tremendous difficulty proving that they are entitled to assets that were held solely by the other person. If you have been cohabiting in a home but you do not own that home, you would have to show that you have made some significant contribution to that property.  This is unlikely to give you equal rights to the property but it will show that you may well be entitled to some interest in the property.


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