Frequently Asked Questions – Cohabitation

In a series of ‘Frequently Asked Questions’, we will be tackling the most common questions relating to divorce, cohabitation, prenuptial agreements and care of children. Cohabitation is becoming the popular alternative for those who are happily unmarried, as well as those just starting out in their relationships.

What’s the difference between cohabitation and common law marriage? They sound like the same thing?

Cohabitation is when you live with your partner, but you are not married, engaged to or in a civil partnership.  There is no such thing as a common law marriage, you either are cohabiting or are married/in a civil partnership.  As a cohabitee your legal rights should the relationship fail are very different, even if you have children together, than if you had been married/in a civil partnership. For further information please see: http://hklaw.uk/hk_news/common-law/

My girlfriend and I live together but aren’t married or engaged. If I decide to move out, do I still have full parental rights over my children (she isn’t the mother but we’ve lived together for over ten years)?

Your girlfriend cannot acquire parental rights over your children unless you (and their natural mother) have either given them to her, or she has obtained them via court order (such as a child arrangements order in your joint names).  If neither of these options apply then you as Father, and their natural mother, are the only people with parental rights for your children.

My friend and I live together in a house that she owns, if she decided to sell the house am I left out on my own? Does she need to give me any notice? We don’t have any written agreements in place but I do pay rent each month.

If you are simply living in your friend’s house and pay rent under an agreement (whether a verbal or written one), then you are a licensee of the property, and if your friend decides to sell the property, you would be given notice to vacate the property. You would have to vacate the house upon the expiry of that notice.

My partner and I don’t want to get married. We live together but my partner owns the house – what happens if they die? Am I able to stay in the house?

The ownership of the house would pass according to the terms of your partner’s Will, or if they did not make a Will, under intestacy rules to their family.  You may not be able to stay in the house, unless you either have the agreement of the new owner, or your partner made provision for you in their Will for you to be able to reside in the house.    You might also need to make a claim against the house itself if you have contributed to the purchase price, or any renovation works at the property. Or make a claim against your partner’s estate if you have been dependent on your partner for a minimum period of 2 years immediately preceding their death, but this claim must be made within 6 months from the date of a Grant of Probate so it’s essential that someone in that position takes urgent legal advice. You and your partner should discuss this and make Wills to prevent future uncertainty, and consider entering into a cohabitation agreement so no difficulties arise in this situation. For further information please see: http://hklaw.uk/hk_news/the-dangers-of-acting-as-executor-of-a-will/.

My boyfriend and I would like to move in together. Is there anything you can advise that we do before signing the contract to purchase the property?

It is important to consider how you are going to own the property that you purchase.  If you are putting in unequal contributions to the purchase price, you should enter into a Deed of Trust or cohabitation agreement to state what you would each receive should you separate and the property is to be sold.  A cohabitation agreement can also cover additional issues such as bank accounts, having children, responsibility for the payment of bills etc.  This is particularly essential if for any reason you are contributing to the purchase price but the house is being placed in only your boyfriend’s name for any reason.

Disclaimer: These answers do not constitute legal advice, and should not be relied upon. The answers are intended to be useful but do not replace legal advice tailored to your individual circumstances.