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Cohabiting couples' rights - the myth of cohabitation

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Upon separation, cohabiting couples do not have the same legal protection as married couples.

There is no such thing as common law marriage, despite being a social term that is used frequently. Legally the position of someone who cohabits is very different from that of someone who is married.

It is likely that this will change over time as the Government recognises that cohabitees are the fastest growing family type in the UK, having increased from 1.5m families in 1996 to 3.3m in 2017.

However, until this long overdue reform is put in place, the rights of cohabiting couples remain vulnerable.

What are the legal rights for cohabiting couples and what can cohabitees do to protect themselves?

When a marriage breaks down the Court can order maintenance, transfer of properties, lump sums and pension sharing orders between the parties.

A cohabitee upon separation has no right to claim maintenance, no ability to share pensions and no right to share property unless the property is jointly owned (save for in limited circumstances which are difficult and costly to litigate).

Practical advice

If you are thinking of living with someone and not getting married, or if you are already living together:

  1. Declaration of Trust

Anyone who decides to cohabit and purchase a property together should complete a Declaration of Trust. This document confirms the proportions in which two or more individuals own a property together regardless of how the property is owned on the title deeds. The Declaration can include details of financial contributions both parties have made towards its purchase or reflect an alternative agreement between the parties regardless of financial contributions. The proportions could be 50/50 or 100% to one party, or anything in between. The advantage of a Declaration of Trust is that it creates certainty and will avoid a costly dispute if the relationship ends.

       2. Cohabitation Agreement

If you are thinking of living with someone and not getting married or if you are already living with someone then, irrespective of property ownership (or in addition), you should consider entering into a “Living Together Agreement”. Such an Agreement can deal with many matters including liability for payment of the mortgage, payment of other bills, home improvements and what will happen should the relationship break down.

       3. Make or update your Will

It is extremely important to have a valid Will. If one cohabitee were to die without leaving a Will, under the Rules of Intestacy unmarried cohabitees do not inherit.

Breakdown of a cohabitation relationship

If the relationship breaks down there may be a dispute about a property that is jointly owned, or a property is in one of the parties’ names where the other party thinks they are entitled to a share.  An application can be made under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) to ask the Court to decide what share of the property each party owns and to decide whether it should be sold to release the share.

This is a costly application and it is important to take advice from a lawyer specialising in this area before commencing any claim.

Breakdown of a cohabitation relationship where there are children

If you have children, there are certain ways of obtaining financial support for them.

You may be entitled to the following:

  1. Maintenance through the Child Maintenance Service (CMS) or, if the absent parent’s income is higher than the limit which the CMS deals with (this is currently £156,000 per annum gross), the Court may award “top up” maintenance, and/or monies in respect of educational expenses or for expenses connected with a child’s disability.
  2. Lump sum for the benefit of the child.
  3. Transfer or settlement of property.

The current law is a complex and sometimes unfair area. It is extremely important to get in touch with a professional solicitor specialising in this area should you find yourself in such a situation. You can talk to someone from our Family Team if you are concerned about cohabiting rights or anything mentioned in this article.

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.