Legal Rights for Cohabiting Couples

Legal Rights for Cohabiting Couples

Legal Issues Can Be Complex

If you are not married or in a civil partnership and your relationship breaks down, the legal issues that you face could be complex. Contrary to popular belief, couples who cohabit do not benefit from the same legal rights as married couples when the relationship comes to an end. The concept of ‘common law marriage’ simply does not exist in our legal system.

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Limited Legal Recourses

There can be very limited legal recourse for cohabiting couples upon the breakdown of their relationship and this is particularly common where financial matters are concerned. As the law presently stands, the types of financial claims that can be made by unmarried partners are limited. The absence of legal protection can lead to uncertainty and financial difficulty at the end of the relationship unless a claim can be made with respect to ownership of property or a financial claim on behalf of a child.

Obtaining expert legal advice is crucial to understand what your entitlements may be and how you can protect yourself should your relationship end. In circumstances where a dispute arises or you do not know where you stand with division of assets, we can advise you on your options and endeavour to keep matters as amicable as possible. Below are just some of the issues that may arise if your relationship breaks down:

Financial Entitlements

For the large part, financial entitlements available to divorcing couples do not extend to cohabiting couples, no matter how long the cohabiting relationship has lasted. As a starting point, neither party has any financial responsibility towards the other and each party will leave the relationship with whatever assets are held in their sole name.

The same limited rights apply on death – people who live together do not automatically inherit on the death of their partner. In the absence of a will this may cause real difficulties. Similar issues also apply if disputes arise over family property which is shared with wider family members such as brothers, sisters and parents, or with friends. Inheritance disputes may also arise in these circumstances and it may be possible to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 if it can be shown that the applicant was a dependent.

Entitlements to Property

On a relationship breakdown, disagreements between former cohabitants can arise in relation to the division of property, such as the home in which the parties lived.

If the couple disagree about the division of property when the relationship comes to an end, an application under the Trusts of Land and Appointment of Trustees Act 1996 may be made. For example, although the property may be in the sole name of one party, there may have been a common intention that the other party should have a beneficial interest in the property.

Alternatively, the party without the legal interest in the property may have contributed financially to the property (eg. contributed towards the mortgage or paid for home improvements) and, therefore, may have acquired a beneficial interest in the property. In these situations expert advice should be taken to determine whether a party can be said to have acquired a beneficial interest.

Issues Relating to Children

It could also be that you have children with your cohabitee and are unsure of your legal position and rights when separating because you are not married. Essentially, the same rules should apply to you and your child whether you are married to the other parent or not but, every family is unique and this is not always the case but we can provide tailored advice for you and your family’s situation. Within our family team, we have a Resolution Accredited Specialist in areas of cohabitee relationship breakdown and are able to offer a free initial consultation by telephone in qualifying circumstances.

If an agreement cannot be made as to financial provision for children (and financial recourse through the Child Maintenance Service has already been exhausted or does not apply), then an application can be made for financial provision for any children under Schedule 1 of the Children Act 1989.

Non-financial concerns for children can also arise such as choice of schooling, religious upbringing, matters concerning a child’s health or decisions relating to how much time a child will spend with either parent and with whom that child will live. If an agreement cannot be reached, either parent may apply to the Court for an order to determine the issue at hand.

Couples can, to an extent, mitigate uncertainty by entering into a cohabitation or relationship agreement or by entering into a declaration of trust to regulate their financial affairs whilst they live together. It may prove necessary, especially in cases where property is being purchased or finances shared, to consider entering into a Cohabitation Agreement to set out what would happen to your assets should the relationship ever breakdown and can help to identify ownership of property and in what shares any property is to be held. Our lawyers frequently advise prospective cohabitees on how best to protect their interests but are also committed to managing cases in a friendly amicable way to set the relationship up well for the future. Our team of family law experts has considerable experience in drawing up such documentation which can help to avoid any ambiguity regarding property ownership should the relationship come to an end.

We will advise you on the range of potential outcomes and what can realistically be achieved, whether or not an application is made to the Court for a judge to decide the matter. Where possible, we aim to resolve such disputes away from the Courts but we recognise that this is not always possible.

Whatever process option is chosen, we will work with you to offer creative strategies to achieve the very best settlement for you and secure a positive future for you.

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