Cohabiting couples — your legal rights and the common law myth

Cohabiting couples are now the fastest growing family type in the UK, with one in five families choosing cohabitation over marriage.

While this more modern approach comes with certain advantages, it also raises important questions about legal rights — particularly in the event of separation — with 46% of British adults mistakenly believing that cohabitation is protected by common-law marriage.

Here, Legal Director and family law expert Amy Harris and Paralegal Peter Glascott outline what cohabiting couples need to know about their legal rights and explain why a new Government Bill could signal the start of a new era for cohabitation disputes.

Automatic entitlement

Cohabitants don’t have the same legal framework as married couples to guide them through the dissolution of their relationship. Instead, cohabitants rely on a combination of laws that can vary based on factors such as property ownership, financial contributions and the presence of dependent children. The lack of a standardised legal framework can lead to confusion, disputes and uncertain outcomes.

One of the key distinctions between cohabitants and married couples is the absence of an automatic entitlement to each other's financial assets upon separation. Unlike divorcing spouses — who benefit from clear legal guidelines for the division of assets — cohabitants must navigate a more ambiguous legal landscape.

Property rights

One of the primary issues faced by cohabitants upon separation is the division of property. Cohabitants don’t benefit from automatic legal rights to property acquired during the relationship. Property may be owned in one partner's name, both names or even jointly with others.

In cases where property is held solely in one partner's name, the other may face an uphill battle in establishing a claim to a share of that property. The lack of legal presumptions and protections for cohabitants can leave individuals — who may have contributed substantially to the property's value or maintenance — in a precarious position. Such individuals may face difficulties in establishing a legal entitlement to a share of that property.

In some cases, unmarried cohabitants may need to rely on property laws that weren’t specifically designed for their situation. For instance, the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) can be invoked to settle disputes over property ownership. However, the application of such laws can be complex and outcomes may vary based on individual circumstances.

In addition, these applications may not be dealt with by the family court, which is used to dealing with cases involving vulnerable circumstances and families with children.

Financial contributions

Cohabitants may also encounter challenges relating to financial contributions during the relationship. Unlike the option for spousal maintenance in divorce cases, cohabitants aren’t automatically entitled to financial support from their former partners. This can be particularly challenging for individuals who have sacrificed career opportunities or financial independence during the relationship.

This is also an issue in relation to pensions. While married couples can claim a share of each other's pensions in divorce proceedings, cohabitants don’t have the same automatic right. This lack of entitlement can be particularly detrimental, especially if one partner has contributed significantly to a pension fund during the course of the relationship.

Children

For cohabiting couples with children, separation introduces another layer of complexity. While childcare laws exist independently of the parents' marital status, cohabitants may face unique challenges in establishing parental rights and financial responsibilities.

Cohabitation agreements

To mitigate potential property disputes, cohabiting couples can proactively create cohabitation agreements. These legal documents outline how property and assets should be divided in the event of a separation. While not legally binding in the same way as divorce settlements, they can serve as persuasive evidence in court and provide clarity on each partner's expectations.

The most common areas that can be covered in a cohabitation agreement include:

• how rent, mortgage or household bills are paid
• financial matters, such as what happens to joint bank accounts or pensions
• respective beneficial interests in property (whether owned jointly or solely)
• financial arrangements for children.

A new era for cohabitation disputes?

Given the complexities surrounding cohabitants' rights upon separation, legal experts have argued for reforms to provide clearer guidelines and protections. Some suggest that specific legislation should be introduced, similar to the legal frameworks in place for married couples.

Many family lawyers are campaigning this week to raise awareness of the disparity in legal position for unmarried couples. Most people fail to understand that upon separation the outcome can be very different for unmarried couples.

The Government’s new Arbitration Bill has the potential to significantly enhance the dispute resolution process for separating cohabitants. By promoting voluntary arbitration, tailoring solutions and offering a more efficient and cost-effective alternative to traditional litigation, the bill may usher in a more effective era of resolving cohabitation disputes.

Talk to us

If you're in any doubt as to your legal position, it’s important to take advice from a family law solicitor. 

We assist all types of couples with the breakdown of a relationship, whether they are married or not.

Find out more about cohabitation and our services.