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, limited, and what can become complex, claims can be made.
Unlike marriage, when on relationship breakdown, the court has wide powers 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 there is no discretion to resolve matters fairly.
Civil partnerships as an alternative to marriage 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.
As a result of this, we encourage people to approach us at the beginning of a relationship to consider the merit of a cohabitation agreements. 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.
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.
Parents can consider applications under Schedule 1 Children Act.
Claims can be made under Schedule 1 for property and lump sums, 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).
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.
To help you deal with any issues in relation to cohabitation please view our clients' frequently asked questions.