Cohabitation and unmarried families

Many unmarried couples live together. A common misconception is that after living as a couple for a period of time, two people become common law husband and wife. As such, it is believed they have the same rights as a married couple. This is wrong; a common law partner or marriage does not exist.

If you live with someone, we can help you take steps to provide some legal protection for you and your partner. This includes minimising legal and financial issues that can arise if you separate or one of you dies. A cohabitation agreement can be a worthwhile step to help prevent a later dispute and our family lawyers are experienced in preparing these.

We also advice on all aspects of relationship breakdown including disputes between unmarried partners in relation to property and financial provision for children.

Assets such as property are not divided as they would be on divorce regardless of the length of cohabitation. We advise on claims under the Trusts of Land and Appointment of Trustees Act 1996 to determine the nature and extent of property ownership and whether the asset should be sold. This is a complex area of law and so it is important to seek early legal advice.

Unmarried partners can make a claim for financial provision for children under schedule 1 of the Children Act 1989.  The financial provision can cover top up orders for maintenance where the maximum assessment has been made by the Child Maintenance Service, payment of school fees, lump sum payments, purchase of a property or contribution towards housing costs for the benefit of the child.

Contrary to popular belief, a ‘common law marriage’ does not exist. Cohabiting couples are not afforded the same rights as married couples on relationship breakdown in terms of financial support, property and pension division, even if they have been living together for decades.

A cohabitation agreement is a contract which sets out a couple’s financial rights and obligations towards each other whilst living together and details what should happen in the event of relationship breakdown.  It can cover how assets and property are owned, the payment of household bills, payment of debts and how property, income, savings and other personal items will be divided if you split up. The agreement should be reviewed when there is a significant change in circumstances such as the birth of a child or serious ill health.

They are legally binding provided they have been drafted and executed properly and signed as a deed. It is therefore essential to give yourself sufficient time to consider exactly what you want included in the agreement. You should also take early independent legal advice and ensure that you have a clear picture of your partner’s financial position.

If the property is jointly owned then it will be assumed that you will each have an equal interest in it, unless there is a declaration of trust setting out each person’s interest in the property. If you are considering purchasing a property jointly but will be contributing different amounts to the deposit, or intend to make a financial contribution despite not being one of the registered owners, you should have a declaration of trust drawn up at the time of purchase.  Our residential property team can assist you with this.

If you are living in a property registered in the sole name of your partner, your partner will retain the legal ownership of the property on separation. You may however have a potential claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Under these proceedings, a court will decide if you have a beneficial interest in the property and the extent of that interest. The law of trusts is a complex area so please contact us for further information.

The Child Maintenance Service will deal with all cases where the non-resident parent earns less than £156,000 gross per annum. In higher income cases, there is the option to make an application under Schedule 1 of the Children Act 1989 for additional financial provision for the benefit of the child. This can include top up maintenance following a maximum assessment by the Child Maintenance Service, payment of school fees, a lump sum or monthly payments to cover specific items and expenses for the child.  It can also include the purchase or a transfer of property to the parent with day to day care of the child which will revert to the paying parent when the child reaches 18 or finishes full time education.

If you require advice in relation to cohabitation or any aspect of family law, please get in touch.