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Expert advice for cohabiting couples

It's increasingly common for couples to choose to live together without getting married. Many misconceptions exist surrounding the status and financial implications of cohabiting relationships.

There is no such thing as a "common law marriage". Even if you have lived together for many years, or have children together, there is no special status afforded to your relationship. This means that should the relationship break down very limited claims can be made which can become complex.

Unlike a marriage or a civil partnership, where the court has wide powers on relationship breakdown to divide or redistribute all assets including property, investments and other resources such as pensions, and may also make maintenance orders; where a cohabiting relationship breaks down, remedies are much more limited and the court does not have the same ability to resolve matters fairly.

The law applicable to cohabitants differs markedly in England and Wales from that in Scotland. If you are cohabiting in Scotland please see our separate sections below on cohabiting in Scotland. We have experts who can advise in relation to both jurisdictions.

Civil partnerships

As an alternative to marriage, civil partnerships are now available to both same sex and opposite sex couples and will provide the same remedies to a separating couple as those who marry. Civil partnerships have similar formal requirements which must be met in order to enter into them as is the case for marriage. Civil partnerships do not offer any remedies for same sex or opposite sex couples who cohabit.

Cohabitation agreements

We encourage people to approach us at the beginning of a relationship to consider the merit of a cohabitation agreement. Understanding the position at the outset and taking simple precautionary measures can help to prevent significant problems later on. Cohabitation agreements can regulate arrangements during your period of cohabitation and can provide for what happens to your assets if the relationship breaks down. They can be wider in scope than a court-imposed solution.

Declarations of trust

If you own, or plan to own, a property with your partner, it is essential to record how you intend to own your respective shares in a declaration of trust. At the very least, this should be addressed with your conveyancing solicitor at the time of purchase.

Wills for cohabiting couples

Making a will, including appointing guardians, is also important. It should be consistent with the terms of your cohabitation agreement.

Cohabitation in England and Wales

Property disputes

If your relationship breaks down, the legal remedies available for property disputes are limited to trusts and land law solutions which are not specifically tailored to cohabiting relationships.

If you can establish an interest in a property in which you live or own with your cohabiting partner, you may be able to bring a claim regulated under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA or TOLATA). These can be complex disputes.

Establishing whether you have an interest in a property can be straightforward if clear documentation exists, but if there is no documentation, you may have to rely on other evidence and it is crucial that you seek legal advice at an early stage.

Schedule 1

Parents can consider applications under Schedule 1 Children Act.

Claims can be made under Schedule 1 for property and lump sums, usually to secure a home for your child and the parent with care to live in. These claims might be made in conjunction with a claim under the Trusts of Land and Appointment of Trustees Act (TLATA or TOLATA).

Child support

When a couple separates, the absent parent will be required to pay child support in accordance with Child Support Agency (CSA) guidelines. You may wish to consider whether you are able to reach agreement in respect of this or whether an application to the CSA is necessary. We will advise you on your options and what you might expect to pay or receive for your child depending on your circumstances.

If your income exceeds a limit specified by the CSA, it is possible for a further claim to be made against you for 'top up maintenance' under Schedule 1 Children Act 1989.

Cohabitation in Scotland

Cohabitation claims in Scotland

Scotland has specific legislation to protect cohabitants’ interests when they separate. This is governed by the Family Law (Scotland) Act 2006.

The Act provides certain rights to cohabitants in respect of money, household belongings, and joint accounts or savings they may have accumulated during their relationship.

Most notably, the 2006 Act provides cohabitants with a right to make a claim on separation for a capital sum from the other party to try and redress any imbalance financially arising from contributions made by either party to the other during the relationship. For example, where they may have been left financially disadvantaged as a result of the relationship or may have financially advantaged the other party.

The test is one of fairness based on the individual circumstances of the particular case itself. The courts have a wide discretion to decide what is fair but they can only award a capital sum. They cannot order a transfer of a house or other property, or a pension split as they could in a divorce case.

A cohabitation claim must be made within one year of the date of the parties ceasing to cohabit with each other. Any claim made after that will be time-barred and therefore it is important that in a cohabitation situation legal advice should be sought as quickly as possible after any separation.

Cohabitation agreements in Scotland

Given that cohabitant claims in Scotland can be for substantial sums, couples contemplating cohabiting now have to consider whether it might be prudent to enter into a cohabitation agreement to regulate what should happen if they later separate.

The cohabitation legislation in Scotland specifically recognises that a cohabitation agreement might be entered into. Such agreements can specifically exclude such claims. As with prenuptial agreements in Scotland, these types of agreement are becoming increasingly popular. A well-drafted cohabitation agreement will provide considerable protection for any person considering, or currently, cohabitating.

To help you deal with any issues in relation to cohabitation please view our clients' frequently asked questions.

Frequently asked questions

  • Is there anything I should do before I begin to live with my partner?

    At the outset of the relationship and to protect you as a cohabitant there are many issues you should consider.

    If you are purchasing a property with your partner, you will need to consider whether you want to own the property equally or whether you need a declaration of trust setting out the unequal ownership of the property and what might happen if it were to be sold in the future. You need to discuss with your conveyancing solicitor whether to own the property as ‘tenants in common’ or ‘joint tenants’ which have different implications if one of the co-owners were to pass away whilst you own the property together.

    You also need to consider making a Will, entering into a cohabitation agreement and whether to take out life insurances. We will advise you on what may be appropriate for your particular circumstances.

  • Can I enter into a written cohabitation agreement?

    Agreements setting out the arrangements which will apply whilst a couple lives together as well as establishing rights on the breakdown of the relationship must meet certain conditions and standards if it is to be valid. We can ensure that these criteria are met to provide you with as much certainty as possible.

    A cohabitation agreement can help you regulate how you deal with your financial affairs during the course of your relationship as well as dealing with the division of assets should you separate. This can include the contributions each party will pay towards the bills and mortgage/rent, the proportion of the property each of you will own now and on separation, how any debts should be paid and how contents should be divided if you separate.

    Entering into an agreement before you cohabit means that on any breakdown both you and your partner can determine what will happen and helps you to avoid the expense and stress of legal proceedings.

  • Our home is owned in joint names, do I own half?

    If you own your property jointly with your partner, if the correct procedure was followed when the property was purchased, the shares in which you own the property should be clear. Otherwise, it will be presumed that you own the property in equal shares unless one party can prove otherwise.

    This is a complex area of the law, and there are a number of issues to consider such as the financial contributions you have each made, how you conducted your finances and why the house was purchased. We can advise you on the prospects of success of achieving a share in excess of 50% and how best to go about this.

  • The property is owned in my sole name, does my partner have an interest?

    If your home is owned in the sole name of you or your partner and either party wishes to establish an interest in it, there are complex issues to consider as that party will need to establish the existence of a resulting or constructive trust, or proprietary estoppel. It is not possible to establish an interest just as a result of having lived in the property for a period of time.

    Resulting trusts can be established by a direct contribution to the purchase price by the non-legal owner. We can advise you on whether any contribution you or your partner has made will be sufficient to establish a resulting trust and the likely share of the property they will receive.

    A constructive trust can be established if it can be shown that both parties intended to share ownership of the property despite it being in one party's sole name and that one party acted to their detriment on the basis of this intention. There are a number of considerations for both establishing a common intention as well as detrimental reliance, such as conversations you have had with your partner, the reasons why the property is in one party's sole name, payments made towards the mortgage, financial contributions towards improvements to the property or actually working on such improvements. Usually, normal household duties or a contribution to household expenses will not be sufficient.

  • Can I stay in the property?

    If you do not have any legal or beneficial interest in the property, our family law solicitors can advise you on whether you have any prospect of continuing to reside there by way of a licence or in circumstances of domestic violence. Otherwise, in England and Wales, you may have no legal right to remain in the property and could be excluded on being given reasonable notice.

  • I have been cohabiting in Scotland and have separated. Do I have a right to stay in the house we lived in?

    This can be a complex question and will depend on a number of factors. You may be entitled already if you own the property. Even if you do not own the property you may be entitled to apply to the court as a cohabitant for an order to continue to occupy the property for a certain time.

  • Who owns the furniture and possessions in the house?

    The division of belongings after a relationship breaks down can be a difficult process. Usually anything purchased by one party will remain in their ownership but items bought jointly can be more difficult to deal with. We can advise you on how best to approach these issues to reach a sensible solution.

  • Will my partner have to pay me maintenance?

    Unlike a married couple, if a cohabiting couple separate there is no legal obligation to provide any financial support to your partner over and above any child maintenance that may be appropriate. This is the case regardless of the history of the relationship and despite the fact that one party might have been wholly financially dependent on the other. For this reason, it becomes even more important that your position is protected in respect of your property.

  • We are not married; does this affect our children?

    If a child's parents are not married, although this makes no difference to the day to day care of the child whilst the parents are cohabiting, there are legal differences which alter the position if the parents separate. We understand that making the appropriate arrangements for your children can be the most difficult aspect of the breakdown of a relationship and our family law solicitors will always provide sensitive and clear advice. For more information see our page on resolving disputes involving children.

  • My ex-partner owns our house and I cannot afford a home of my own. Our home is really near our children’s school. Can we continue to live here? My ex-partner owns our house and I cannot afford a home of my own. Our home is really near our children’s school. Can we continue to live here?

    There are two possible claims to look at. First of all, we would need to consider whether you have any beneficial interest in the property based on financial contributions you have made towards it, or promises your ex-partner made you in relation to the property. The second consideration would be whether you could obtain a property adjustment order enabling you and the children to remain living at the property until they finish school. If you are the main carer for the children and it could be demonstrated that your ex-partner could afford to live elsewhere, you would have a claim under Schedule 1.

  • Now we have separated, I can no longer pay my share of the mortgage? What can I do?

    You and your ex-partner are jointly and severally liable for the mortgage which means that it will affect both your credit ratings if you cannot pay your share. If your ex-partner can afford to pay it then they will need to think carefully before allowing the mortgage to fall into arrears. If neither of you can pay the mortgage, then agreeing a quick sale may be the only option. The sale proceeds can always be held until an agreement has been reached regarding how they are to be shared between you. If you can no longer afford your share because your partner has remained living at the property and you have moved out, you may have an argument that you should receive occupational rent from them. This could be met by them paying your share of the mortgage.

  • Now we have separated, I cannot afford to pay half the children’s school fees, can I seek an order that the children’s other parent meet them in full?

    Yes, you could seek a school fees order under Schedule 1. Whether you are successful will depend on the court’s analysis of your income and expenditure and your ex partner’s income and expenditure. If the court is satisfied that the full school fees are affordable for your ex-partner and half the fees are unaffordable for you, then your application is likely to succeed. Yes, you could seek a school fees order under Schedule 1. Whether you are successful will depend on the court’s analysis of your income and expenditure and your ex partner’s income and expenditure. If the court is satisfied that the full school fees are affordable for your ex-partner and half the fees are unaffordable for you, then your application is likely to succeed.

  • Our child has a disability. How does this affect claims on separation?

    Claims in relation to children usually end when the child completes their full time education. However, depending on the nature of your child’s disability and the extent of their dependency on you, you may still have claims under Schedule 1 when they are an adult. On separation, your child’s specific needs will also be carefully considered, whether they need specially adapted facilities at home, particular course of treatment and particular learning resources. These things would need to be factored in to the cost of a suitable home and whether there are costs that could be covered by a lump sum payment.

  • My ex-partner is very wealthy but the Child Maintenance Service says they only have to pay £100 per week. Is there anything I can do?

    The Child Maintenance Service does not automatically take all income into account. There is an appeal process through which you can establish whether they have overlooked anything, for example, dividend income from a business. There are several stages to questioning a maintenance assessment. If you are successful, this may resolve the issue. If your partner has a high income, it may result in the maintenance assessment being for the maximum amount. In this case, under Schedule 1, the court could also look at yours and your ex-partner’s income to see whether your maintenance should be 'topped up' further. If the review of your maintenance assessment does not improve the position, it would be a case of analysing whether any of the other claims under the Children Act might help alleviate your financial position.

  • I live in Scotland and have just separated from my long term partner. We are not married. Do I have any rights?

    Yes. In terms of the Family Law (Scotland) Act 2006 you have a right to make claim against your partner if you have been financially disadvantaged or have advantaged your partner during the cohabitation.

    You can apply for a capital sum, share of belongings and furnishings and also share of any joint bank account. You can also apply for a top up capital sum in respect of any children over and above normal Child Maintenance entitlements.

    You must make any claim within one year of the separation date otherwise you will lose the right to make any claim.

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Emma Collins
Emma Collins

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+44 (0)345 073 9900 Email Emma

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