Things to consider when having children together as cohabitees

It has been widely reported recently that marriage rates in the UK are declining whilst rates of couples cohabiting are increasing. This trend has been going on for a number of years and does not appear to be showing any signs of changing.

With so many couples waiting to get married or deciding not to get married for various reasons there are several issues that cohabiting couples should consider when having children together which we look at below.

This article only touches on the parenting aspects of not getting married and living together as cohabitees. Read our article on whether marriage is 'worth it'.

1. Decision making

If a couple is not married both parents will have to go to the Registry Office to register their child’s birth in order for them both to be named on the birth certificate. Until an unmarried father is named on the child’s birth certificate they will not have parental responsibility for the child. If a mother is in hospital for a period of time after the birth of the child and could not attend the registry office to register the birth during that time the baby’s father would not have parental responsibility for the child. Legally this would mean that they do not have authority to make decisions about the baby’s medical treatment during this time.

If an unmarried father is not named on their child’s birth certificate when the child’s birth is registered, then they will not have parental responsibility for their child.

2. Surnames

Parents will have to have a discussion about their baby’s surname and consider what surname their baby will have. Inevitably for an unmarried couple this will mean that the baby will not have the same surname as one of its parents. The baby will usually be known by the mother’s surname in the hospital and people will usually continue to assume that the baby has the mother’s surname.

If one parent and the baby have different surnames there are additional things that will need to be considered in the future. For example, if that parent is taking the baby on holiday on their  own, it will be a good idea for them to travel with a copy of the baby’s birth certificate to avoid any difficulties or awkward questions. They should also check any additional travel requirements that the country they are travelling to might have.

It should also be noted that once a baby has a registered surname it will require the agreement of all people with parental responsibility to change the child's surname.

3. Assumptions

People still often assume that parents with a child together are married.

4. Finances

There is no such thing as common law marriage in England and Wales. Often people incorrectly believe that once couples have lived together for a certain amount of time they have similar rights to married couples. That is not the case and cohabitees do not acquire rights similar to marriage no matter how long they have lived together or if they have children together. This means cohabitees should have open and frank discussions about finances early on in their relationship and before they have children.

5. Property ownership

As there is no common law marriage it is important for cohabitees to know how they own their property and the financial implications of this if they separate or if one of them were to die.

There are various ways to own property. This could be owned by one person in their sole name, in which case the other cohabitee would not have any automatic legal right to the property and would have to make out a claim that they had acquired a financial interest.

A property that is owned by both cohabitees can be owned in two ways: as joint tenants, where the other person’s share automatically passes to the other if one person were to pass away, and tenants in common where the couple own the property in separate distinct shares.

If the property is owned as tenants in common, and the parties made different financial contributions when the property was purchased,  the parties should discuss whether they want this to be recorded in a deed or declaration of trust or other agreement to set out their differing financial contributions. In addition, if a property is owned as tenants in common one person’s share will not automatically pass to the other if that person were to pass away. Instead, their share of the property will pass under the person’s will or the intestacy rules if they have not made a will.

6. Financial claims

If cohabiting couples subsequently separate it is very unlikely that we will have any financial claims against the other’s assets. This means that the mother could be financially disadvantaged by taking periods of maternity leave as they may have to use their savings to contribute towards the family home whilst their partner is still able to contribute to their savings and to their pension during this time. Again, open and frank discussions about finances during periods of maternity leave are important.

7. Claims on behalf of children

However, couples who have children together do have financial claims against each other for the benefit of any children. These could include payments for housing during the child’s minority years, school fees and medical expenses. However, these payments would be for the benefit of the child and any property would usually revert back to the parent who provided it once the child was old enough. Child maintenance is also always payable regardless of whether or not a couple is married.

8. Wills

The limited financial claims that cohabiting couples have against each other if they separate also extend to if one of them were to pass away. This highlights the importance of all cohabitees, but especially those with children, making wills. If a cohabitee does not have a will their estate will pass under the intestacy rules. This would mean that their estate would be held on trust for their child or children until they are old enough to receive it. This could potentially leave the other cohabitee in financial difficulty during the child’s minority years.

It is also important to agree and set out what would happen to the child or children if both parties were to pass away.

9. Tax

There are also tax implications of not being married when one person passes away, for example unmarried couples are not entitled to share in the other’s unused nil rate tax band which is the amount that can pass on death without any inheritance tax being paid.

10. Pensions

There is also not the automatic right to benefit from each other’s pension unless they are formally named as a nominated beneficiary.

11. Future marriage (and divorce)

If cohabiting couples do decide to get married in the future the period they have lived together will be taken into account in the length of the marriage if they later divorce in respect of any division of assets.

As set out above and in our previous articles it is important that cohabitees know their rights especially when they have children together. Living together as cohabitees will often mean having open and frank conversations about finances early on their relationship and when significant life events occur such as buying a house and having children.

12. Cohabitation agreements

Cohabiting couples should consider whether their discussions and agreements should be recorded in a cohabitation agreement. Cohabitation agreements can provide for what happens to a couple’s assets during the relationship and if the relationship breaks down.

13. Co-parenting plans/agreements

Couples who are planning to start a family or raise a child in a way that is not traditionally considered conventional may wish to consider entering into a co-parenting agreement to set out who is going to play a role in the child’s life and everyone’s expectations as to how the child will be raised and the extent of each person’s involvement.

If cohabiting couples separate, they should also consider entering into a co-parenting agreement which sets out the arrangements for their children as well as other issues reacted to the children such as communication, childcare, education, health, community, culture, family ties and money.