Cohabitation outside of marriage has become an entirely acceptable concept in modern times, allowing couples to live together and raise families without the legal bonds of marriage. For many, cohabitation is convenient and cost-effective, but there are some legal considerations that you should know before entering into a cohabitation situation with a romantic partner.1
Things you should consider
Unmarried cohabitation does not afford the legal protection of marriage
Even though you may live together in the same property, sharing finances and potentially children and presenting yourselves as a couple, you do not have the legal protection of marriage to help you to separate assets and assert your rights in the event that the relationship later breaks down.
Owning and leasing property together introduces complexity
A married couple who lives together in a property that they own or lease has equal rights to that property or its value if they divorce in the future. Unmarried cohabitants do not have this same legal protection, so determining who keeps the property in the event of a relationship breakdown relies on the existence of a signed, written agreement at the outset of the cohabitation.2
If one party solely owns the property and moves their unmarried romantic partner in, they should ensure that their ownership is documented to prevent any attempt at claiming a share of the property in the event of a future separation.
In cases where the couple leases or purchases a property together, they should ensure that both of their names are on the lease agreement or property title deeds in order to ensure a fair outcome in the event of a future separation.
The couple must decide whether to live in the shared property as joint tenants or as tenants in common. Each approach offers a different legal status in terms of survivorship and inheritance of property shares, so this is an area that needs to be explored in greater detail based on a couple’s specific circumstances and preferences.
Estate planning needs to be formalized
A married couple will automatically inherit from one other under intestacy laws, regardless of whether either party has created a will. No such legal protection exists for unmarried cohabitants, so to ensure that your wishes are carried out and your partner is protected against unforeseen financial hardship if you pass away, it is highly recommended that cohabitants in a romantic relationship undertake formal estate planning.3
You should legally establish rights and responsibilities for the cohabitation period
Before moving in together, most couples will have a perception of what life will be like spending all of their time with their partner, and often these perceptions are shattered early on. It is highly recommended that couples discuss their expectations and preferences openly and honestly before moving in together.
Once an agreement has been reached about how household finances and chores will be shared, how shared assets will be purchased and managed, and how personal finances will be handled, it is wise to write a legally recognized cohabitation agreement to put these agreements in writing, to minimize the risk of future disputes, and to protect both parties in the event of a future separation.4
You may unintentionally enter into a common law marriage
Although you may initially enter into a cohabitation situation with no intention of marrying your romantic partner, sharing life together in a committed relationship for a prolonged period often results in both parties considering themselves to be, for all intents and purposes, married.
People in a common law relationship often file joint tax returns, share benefits such as health insurance and Medicaid, and may present themselves as a married couple to friends, family and members of their community.5
In some circumstances, it is not outside the realm of possibility for a cohabiting couple to enter into a common law marriage, which would result in them needing to seek a formal divorce should they later decide to dissolve their relationship.
If a cohabiting couple in a common law marriage wants to end their relationship, they must petition the court for a dissolution of marriage. The court will review all evidence to determine that a common law marriage does exist and, as with a standard divorce, make determinations regarding child custody, alimony, division of property and any other factors pertaining to the specific relationship.
Legal best practice for entering into a cohabitation situation
At Lewis & Matthews, P.C., we strongly recommend that couples looking to cohabit together write a legally binding cohabitation agreement that will detail their responsibilities, consider various potential outcomes (such as marriage, death or separation) and ultimately protect their rights.
To move into the next stage of your life journey with peace of mind, talk to us today.
Resources
- https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2743430/ ↩︎
- https://www.findlaw.com/family/living-together/cohabitation-and-property.html ↩︎
- https://www.nolo.com/legal-encyclopedia/intestate-succession-colorado.html ↩︎
- https://www.findlaw.com/family/living-together/sample-cohabitation-agreement.html ↩︎
- https://www.coloradolegalservices.org/node/347/what-common-law-marriage-colorado ↩︎
