Living Together - Dangerous Myths
“I am a common law wife/husband.” Not true. This is the most common myth of them all. There is no such thing as a common law spouse in current family law. Just because a couple live together, does not give either of them any of the rights and claims they would have if they were married or in a civil partnership. But there are many ways to record and protect the rights of cohabiting parties and getting clear advice on your situation can save a lot of heartache in the long run.
“We have lived together for many years, so I have a financial claim against my partner’s house.” Not true. The law treats couples who are married very differently to those who are not. There is no ‘magic’ number of cohabiting years when a person can claim a financial interest against their Cohabitee, whether it has been 3 years or 50 years. It may be possible to make a claim if a financial contribution has been made under complex laws of equity and trusts, but it is by no means automatic. The best way is to own any property is in joint names or to record any agreement you have reached in a properly prepared “Living Together Agreement”.
“We have children, so I have a financial claim against my partner’s house.” Not true. A parent has a duty to provide maintenance for their children and it is of course a must that children have a roof over their head. However, if a couple with children separate, the non-owner who is caring for the children would not automatically have a financial claim to the partner’s house or assets. A claim can be made for the children but even if a home was provided for them while they were young and in which the non-owner would live with them, normally this would revert to the owner when the children have grown up.
“We live together so I am next of kin.” Not true. Next of kin has no real legal meaning. In practice, hospitals, insurance companies and other agencies and institutions generally only recognise spouses and close blood relatives as next of kin, not Cohabitees.
“My partner cannot force me to leave their home if we split up.” Not true. As a Cohabitee, if you do not jointly own the property, you have no right of occupation and therefore no right to remain there. If the home is rented but you are not joint tenants, you have no right to remain. It is sometimes possible to get short-term rights to stay by applying to the Court.
“I pay 50% of the joint mortgage and so I am not liable for my partner’s share.” Not true. A mortgage is a ‘joint and several’ liability. This means that both parties are liable to pay all of the mortgage. The lender is not concerned who pays what, as long as it is paid. If one party pays 99%, they can still go after that person for the other 1% and vice versa. The same is true for Council Tax, both parties are responsible, regardless of whether one contributes or not.
“It’s not fair, I have left our home and have no benefit whilst my partner is still living there.” Not true. It is possible to seek “occupation rent” from the person who is still in the home. Often instead, it is agreed that the person who remains pays all the mortgage repayments.
“I have made a Will leaving my share of the home I own with my mother/sister/etc to my partner.” On its own, this gift may not be valid. If you own a property jointly you could own as either ‘joint tenants’ or ‘tenants in common’. If you are joint tenants this means that if one of you dies, the other owner automatically inherits the whole of the property. This is irrespective of any provision that you make in a Will. So, if you want someone other than the joint owner to inherit your share, you must either purchase as tenants in common or ‘sever’ the joint tenancy. It is a straightforward procedure to ‘sever’ a joint tenancy. It is of course also important to ensure you have a valid Will after severance.
“I paid the deposit on the joint home I share with my partner so I will automatically get that money back first if we sell it.” Not true. If you own as joint tenants or tenants in common with no Declaration of Trust, it will be deemed that you own a half share, regardless of contributions. If you have paid unequal initial contributions or agree that one party should have a greater interest than the other, then you should have a Declaration of Trust drawn up, which clearly states the percentage each of you has in the property or that you should have back first the extra sum you put in.
“I paid for a conservatory/improvements on our home, so I will automatically get that money back first if we sell it.” Not true. The same applies as above. If a joint tenancy is severed before such expenditure, the Court has discretion to take such matters into account, this is called ‘equitable accounting’. This is however, by no means automatic.
“I am having to sell my belongings to pay for my partner’s debts.” Not true. You don’t have to do this. You are not liable for your partner’s or ex-partner’s debts as long as they are in their sole name, and you are not a guarantor.
“I have told my partner s/he can have my assets if I die before her/him.” Not true. If a person dies without a valid Will, their estate is divided according to the ‘intestacy rules’. This means that a distant relative could inherit the person’s house and all their estate even if someone has lived with their partner for many years. It is vital to have a valid Will. The survivor will also not be able to access money held in the other’s sole bank accounts.
“My partner has died and left me their estate, but I do not have to pay inheritance tax.” Not true. You are not exempt from paying inheritance tax if it is due, unless you are married to the other party or in a civil partnership.
“My partner who was the sole tenant in the rented home where we live has died but I can just continue to live there.” Not necessarily true. This is not automatic but often is possible.
“I am the father of my partner’s children, so I have parental rights.” Not necessarily true. If you are not married to the mother and are not named on the birth certificate you have no automatic rights. This means you do not even have the right to authorise medical treatment. You can obtain parental responsibility however, and we can advise you how to do this.
“I have loads of debt so I don’t have to pay maintenance for my children to my ex-partner.” Not true. The Child Support Agency deal with child maintenance. They base payments on net income and the only allowable deductions are tax, national insurance contributions and pension payments. If you have other children living with you, or the children who you pay for stay with you overnight on average one night a week or more this will be taken into account. We can calculate the amount you should be paying, or receive.