Living together means cohabitating as a couple without being married or in a civil partnership. In some areas of law you may not have the same rights as you would if you registered a civil partnership. This article outlines the legal differences, including the tax implications that both circumstances entail.
For same-sex couples, civil partnerships came into effect on 5th December 2005. Opposite-sex couples have been able to enter into a civil partnership as opposed to a marriage since 31st December 2019.
Topics to be answered in this article
What is a civil partnership?
A civil partnership is a legal relationship which can be registered by two people who aren’t related to each other.
In order to enter a civil partnership, you must be:
A couple aged 16 and over (if you are under 18, you must obtain parental consent),
A resident in the UK and Northern Ireland,
Not already married or in a civil partnership.
Entering a civil partnership makes you ‘Civil Partners’. Registration of the civil partnership provides the couple with legal recognition of their relationship and legal protection offering many of the same rights, obligations, and benefits as married couples.
What is living together or ‘common law marriage?’
A “Common Law Marriage” is often used to refer to couples who choose to live together (co-habit) without getting married or entering a civil partnership. However, the term Common Law Marriage is not a defined term by law, and has no legal standing. Common Law Marriage does not exist in the Jurisdiction of England and Wales. It is a myth that couples who live together for a certain period of time automatically acquire some form of financial protection, or the ability to make financial claims, against their partner. It is safer and simpler to never utter the phrase or refer to Common Law Marriage in the England or Wales as it has no legal standing. Scotland has their own separate legal system and procedure with regards to cohabiting couples.
There are, however, a number of legal documents co-habiting couples can put in place and enter into together which provides one or both of them with additional financial protection, or the necessary financial support and security that they need or in fact deserve as a result of the way in which they have organised their finances together or sacrificed their career, particularly to have children.
What are the differences between a civil partnership and marriage?
There are more similarities than differences between a civil partnership and a marriage, however some differences do exist:
A civil partnership is formed by signing a civil partnership certificate; a marriage is formed by vows
A civil partnership is a civil event; a marriage can be a religious or civil ceremony
A civil partnership ends by dissolution or death; a marriage ends by divorce or death.
Same-sex couples who entered into a civil partnership before 2014 can convert their civil partnership into a marriage.
What are the benefits of a civil partnership?
A civil partnership affords the couple many of the same rights, obligations, and benefits as married couples:
The same property rights and pension benefits as married couples
No Stamp Duty Land Tax on transfers of property between civil partners (subject to particular circumstances)
The same rights of next of kin which avoids issues relating to hospital visiting rights and medical treatment
Intestacy rules apply
Right to register the other’s death and make funeral arrangements
There are also tax allowances that civil partners enjoy the benefits of:
Transfer of assets during lifetime or on death with no inheritance tax liability
Being able to claim marriage allowance (where at least one civil partner was born before 6 April 1935)
Transfer of blind person’s allowance
Transfer of assets with no capital gains tax liability
It is of course important to take your own independent advice based on your personal circumstances.
What are the disadvantages of a civil partnership?
On dissolution of a civil partnership, the couple are treated as a married couple on divorce and can make financial claims for transfers of property, shares or other assets; payments of lump sums of money; division of pensions; and a right to claim income/maintenance of the other party for themselves and any children.
The starting point for dividing assets on divorce or dissolution of a civil partnership is often on a 50:50 basis albeit that this can change for a number of reasons. Cohabiting couples, as discussed above, have no entitlement to make financial claims for transfers of property, shares or other assets; payments of lump sums of money; division of pensions; and a right to claim income/maintenance of the other party for themselves, simply by virtue of the fact they have lived together.
Children and civil partnership
If at the time of a child’s birth, the opposite-sex parents are married or in a civil partnership, both will be automatically be given parental responsibility (equal rights, duties, powers and responsibilities) regarding the children. If an opposite-sex couple are not married or in a civil partnership at the time of a child’s birth, only the mother has automatic parental responsibility. A father may acquire parental responsibility by being registered on the child’s birth certificate, reaching an agreement with the mother or by an order of the court.
If you are the same-sex partner of a child’s parent, you will become the step-parent of your partner’s child. You will not automatically have parental responsibility for the child, but you can acquire parental responsibility by:
Reaching an agreement with the child’s mother or the child’s parents if they both have parental responsibility – only applicable to a civil partner adopting the child
Being in a civil partnership with the child’s mother at the time of the birth – only applicable to female same-sex partners, and only in certain circumstances
Registering/re-registering the child’s birth with the mother – only applicable to female same-sex partners, and only in certain circumstances in certain circumstances.
An order of the court – whether you are just living together or in a civil partnership
One can also acquire parental responsibility by adopting your partner’s child.
What are your rights as part of an unmarried couple regarding property
In the majority of scenarios, the unmarried partner of a named tenant in rented accommodation will have no right or entitlement to remain living in the accommodation if the tenant asks them to leave. To ensure the unmarried partner has equal rights and responsibilities, it is possible to convert the existing sole tenancy to a joint tenancy, but only if the existing sole tenant agrees, and the landlord consents too of course.
The unmarried partner, who is not named on the tenancy agreement, can apply to court to stay in the property longer. However, in rented accommodation this is often not pursued due to the time, stress and costs implications or going to Court, and the uncertainty as to whether such an application will be successful.
Where one cohabitee owns the property in their sole name, such that only their name appears upon the title deeds held at the Land Registry, or in the rare circumstance that the property is unregistered, that only their name appears on the conveyance of the unregistered land, it can be very difficult for the non-legal owner to acquire financial interests in the property as a simple result of their co-habitation.
It is possible even after the property has been owned by one co-habitee for several years, in their sole name, before co-habiting with a new partner, to subsequently enter into a Declaration of Trust or Cohabitation Agreement when they commence co-habitation with their new partner in the property that they own in their sole name. This often occurs when the incoming partner pays off a proportion of the mortgage or contributes significant financial sums towards renovations of the property or an extension. Even without contributing towards the renovations or paying down the mortgage, it is possible for the co-habitees to enter into a Declaration of Trust or Cohabitation agreement providing the non-legal owner with a financial interest.
Where an unmarried couple jointly own property, in the majority of cases, they will own the property equally, and share in the sale proceeds equally or be entitled to 50% of the equity on a buy-out by one partner in the event of separation. However, as with sole ownership couples, it is possible for joint owners to enter into a Cohabitation Agreement or Declaration of Trust stipulating that their respective shares in the property are not 50 / 50 but owned in different proportions. It is even possible for a joint legal owners to own the property as to 100% to one partner and 0% to the other. The percentage division effects the equity or beneficial interest in the property. It is also possible to ring fence a set contribution one or each party makes towards the purchase of a property and then divide the remaining equity in the property in defined shares or percentages.
What do you need to know before leaving a property if you separate:
You will need to know whether you are a named tenant on the tenancy agreement, or if your Landlord is likely to consent to you becoming a named tenant or transferring the tenancy to your name. It is usually advisable, if you intend living in the rented accommodation in the longer term post-separation, not to leave the property unless you are a named tenant, because it can be very difficult to get back into the property, or a transfer of the tenancy once you have left.
If you are the sole owner of the property, you should not leave it unless you have reached a financial settlement with your ex-partner following receipt of expert legal advice. If you were to leave the property it can become very difficult to evict the non-legal owner of the property, particularly where there are children involved. Sometimes the right decision in the circumstances is to provide the main carer of the children, if one party does the majority of childcare, with peaceful occupation of the property whilst seeking to come to a resolution regarding housing in the longer term. It is however beneficial to seek legal advice before vacating the property.
It is possible, if you are not a named owner of the property that you will be served notice by your ex-partner, the legal owner, for eviction from the property. This is something that the legal owner can legitimately do and enforce. You can apply for relief from this application, to remain in the property a little longer, or you may have a Constructive Trust, Resulting Trust or Proprietary Estoppel claim that you wish to advance.
In the case of jointly owned properties, it is still important to consider whether or not it prejudices your case to move out of the property if you wish to keep it. It may come down to affordability as to which party can buy the other out. However, if there are children of the relationship, this needs further consideration which is discussed below.
Quite often if you intend to remain living in the property in the longer term, it is best if you never move out at all. It can be practically difficult to get back into the property, even though you are named on the legal title to the property and have a right of entry.
Simply vacating the property does not mean that you cannot return to it as and when you wish, but again, it is advisable to remain living there as it can be very difficult to keep coming back to the property.
Ending a civil partnership
Civil partners can separate informally, however, if you want to end the civil partnership formally, your civil partnership has to have lasted for at least one year and you would need to apply to the court for a dissolution which is similar to divorce with all the same implications.
How Goughs can help
If you are in a civil partnership looking to separate/dissolve the civil partnership, or a cohabiting couple looking to formalise your relationship and protect your assets with a prenuptial/registration agreement, contact a member of Goughs’ dedicated family team by filling in the form below or email firstname.lastname@example.org.
We also offer a free 30 minute no obligation consultation providing you direct access with one of our professional Family Law specialists, where we will discuss your situation with you and help you understand your legal options.