With the rising costs of real estate and rents in Bermuda, many couples are choosing to cohabit with a view to sharing the burden and reducing overall living costs.

However, couples are often under the misconception that they acquire some legal rights and duties through cohabitation with their partner. Unfortunately, it is often when the relationship ends and one party moves out, or is forced to move out, that the aggrieved partner discovers that there is no such thing as a common law spouse in Bermuda.

In order to benefit from the rights of a married couple, a couple must marry in a religious or civil ceremony. Among other benefits, married couples are at a significant advantage over cohabitees in the areas of property rights, inheritance, pensions, children, adoption, and stamp duty on death.

The consequences of cohabiting with a partner for a number of years rather than marrying can have disastrous effects if the relationship breaks down and there has been no planning by both parties.

Take for example a woman who has raised several children, cooked and kept the house tidy for her male partner for many years. If she is married to her partner, she will have acquired certain rights and should benefit from a reasonable settlement in the event of a legal separation or divorce. However, if she is merely a cohabitee, she may find herself homeless, possibly penniless and with very few rights, if he is the primary breadwinner and the relationship breaks down. That is because you do not acquire the right to maintenance or a duty to be maintained however long you live with your partner if you are not married.

Furthermore, a cohabitee whose partner dies without making a Will may not be entitled to receive anything from the estate. Under current Bermuda legislation, only relations who fall within certain categories can stand to benefit from an estate where there is no Will. These categories of individuals include a spouse and blood relations such as children, grandchildren, parents, brothers and sisters, aunts and uncles and their families.

Where a cohabitee fails to make provision for their partner in their Will, the aggrieved partner is in no position to bring a claim against the estate for maintenance and further provision. The court can set aside and vary any Will that does not make proper provision for certain dependants under present legislation. These dependants include a spouse, a former spouse who has not remarried, children and dependant grandchildren. However, there is no legal requirement to provide for a cohabiting partner in a Will and any claims brought by a cohabitee would be unlikely to succeed.

An unmarried person does not acquire any rights in their partner's house through cohabiting with them. Trust law can assist where a partner has made a direct financial contribution towards the purchase of the house, has assisted with mortgage payments or with the costs of building and renovating property. However, even these claims can be difficult and generally expensive to pursue.

Any property that each spouse owned prior to the marriage would be taken into account in divorce proceedings when dividing the joint or marital assets. There is presently no equivalent process for cohabitants.

Under present legislation, a surviving spouse can inherit the family home and other assets from the deceased spouse, free of stamp duty. Cohabitees on the other hand, cannot benefit from these arrangements. Instead any real property or other local assets passing to the surviving unmarried partner, could be subject to the payment of stamp duty on death where the estate is probated.

If marriage is not practical, desirable or feasible, cohabitees should consider the options available to them and their partner to ensure that their interests are protected, especially in the event of death. They should each ensure that they have a valid Will leaving assets to their loved ones, which may include their surviving partner. If possible, property could be owned as joint tenants to avoid stamp duty on death and to enable the survivor to inherit the property automatically without the need for probate.

A trust could also be established for estate planning purposes. The trustees of the trust could purchase property and other assets which could be held for the benefit of the cohabitees.

Whilst marriage offers many tangible and intangible benefits, rising divorce rates, the prevalence of same sex unions and other factors may discourage or prevent a cohabiting couple from marrying. Whatever the reasons for not marrying, unmarried couples who cohabit should be aware that they acquire very few rights, if any, from living together and sharing a home. Cohabitees ought to take proper legal advice to ensure that precautions are implemented for their own protection and for the protection of their loved ones in the event of death or separation.

Attorney Vanessa Lovell Schrum is a member of the Trusts Practice Group of Appleby Spurling Hunter. Copies of Mrs. Lovell Schrum's columns can be obtained on the Appleby Spurling Hunter website at www.applebyglobal.bm

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.