Unmarried Couples and Cohabitation

Our team of dedicated family lawyers are committed to guiding unmarried and cohabiting couples through the complexities of the legal system.

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Guiding you through all aspects of cohabitation

It is important for unmarried and cohabiting couples to understand that they have fewer and less clearly defined legal rights than married couples.

Our team of specialist lawyers are experienced in guiding individuals through the challenges that unmarried couples face.

We emphasise the importance of cohabitation agreements and assist clients to understand and protect their legal rights from the outset of their cohabiting relationship.

When it comes to property rights, our team is committed to safeguarding the interests of unmarried cohabiting couples. Whether you are seeking advice on property ownership, financial contributions, or the division of assets, we can provide tailored and creative solutions to address your specific circumstances.

Common law spouses

Contrary to popular belief, there is no such thing as ‘common law marriage’ or ‘common law spouses’.

There is a misconception that if an unmarried couple have lived together for a certain period of time or have children together, they will become ‘common law spouses’ and acquire legal rights and responsibilities akin to married couples.

However, this is not the case. Therefore, it is important that unmarried couples have conversations around financial matters at the outset of their cohabiting relationship.

Protecting your interests

Cohabitation agreements

Cohabitation agreements are one of the ways that cohabiting couples can look to protect their financial interests.

This document set out how finances will be arranged during their relationship and their intention as to how they will be dealt with in the event they separate.

Some of the areas that can be covered in a cohabitation agreement includes property ownership, bank accounts, liabilities, household expenses and financial support.

Cohabitation agreements reflect the agreement reached between the parties in a legal document. Provided that both parties have obtained legal advice and financial disclosure has taken place, it is likely that a Court would hold the parties to such an agreement, in the event of separation.

Declaration of Trust 

Another way that cohabiting partners can protect their financial interests is by entering into a declaration of trust.

A declaration of trust is a legal document which confirms the beneficial ownership of an asset, such as a property.

This is commonly used when:

  • There are unequal contributions to a deposit when purchasing a property;
  • A family member has contributed towards the deposit but wishes to receive this sum of money back on the eventual sale of the property;
  • If a cohabiting partner is not the legal owner of the property but is making financial contributions towards the property by paying towards the mortgage; or
  • If a cohabiting partner contributes towards renovating the property but is not a legal owner of the property.

On separation

Rights of cohabiting couples

In the event of separation, cohabiting couples do not have financial claims that arise from their relationship in the same way as spouses do.

For example, cohabiting partners cannot bring claims to share in their partners pension or to benefit from spousal maintenance. This can often place individuals who are financially dependent on their partner in a vulnerable position, in the event of separation. 

A cohabiting partner may be able to assert a financial claim in relation to property, such as the family home.

Ultimately, such a claim will depend on if the individual can prove that they have a legal or beneficial interest in that asset.

The starting point to determine beneficial ownership is that equity follows the law and therefore, the onus is on the individual to prove that they have acquired this interest.

It may be that this can be shown by way of a declaration of trust or other written evidence of an agreement between them.

If there is no evidence of an agreement, the individual may be able to provide evidence that they have contributed towards an asset and the intention of the parties differed to the way the asset is legally owned.

This area of law is particularly complex, but our experienced team are well versed in assisting clients through this process.

Reaching an agreement

If a cohabiting relationship breaks down and an individual does believe that they have a legal or beneficial interest in an asset, we can assist them in trying to negotiate an agreement with their partner to try and resolve this.

Further, if a cohabiting couple have separated and reached an agreement between themselves as to how financial matters are to be dealt with, we can assist them by preparing a separation agreement to record this.

Arrangements for children

In the event unmarried and cohabiting couples separate, there may be arrangements for the children that need to be dealt with and our skilled team of child law specialists would be able to assist with this.

There are also financial claims which could be brought on behalf of the children under Schedule 1 of Children Act 1989. Such claims can be challenging and complex and even if such a claim is successful, the financial provision awarded will be for the benefit of the child only.

"Higgs LLP works to the highest standard, working collaboratively with its clients, ensuring that they understand every step of the process. Providing timely and measured advice. The team is very client focused. The team is tactically astute and gives great levels of service. The team will fight the difficult cases"

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"Excellent empathy during my divorce. Phil Barnsley was very companionate, knowledgeable and provided the relevant information so that I could make an informed choice. I will never forget how they got me through the most difficult part of my life it was like a therapeutic process"

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"Sioned Fitt has a uniquely insightful knowledge of her clients and the difficulties that they and their families / loved ones are facing. Sioned works tirelessly, with great care and patience to provide her clients with the support that they need"

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Why choose us as your cohabitation lawyers

Understanding the distinctive nature of each relationship, we prioritise building trust as an integral part of our client relationships. Taking the time to comprehend the unique aspects of your family dynamics and your desired outcomes, we leverage our expertise to craft a solutions-oriented approach that aligns with your goals.

All our family lawyers are proud members of Resolution, an organisation dedicated to promoting a constructive approach to family issues that considers the holistic needs of the entire family unit.

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Yes. Cohabitation is when a couple who are not married or in a civil partnership live together in the same household. Legally, the rights of cohabiting couples in the event of separation will be more limited than if they were married.

Unmarried couples can enter into a cohabitation agreement and declaration of trust when they intend to move in together, to protect their interests. This is likely to provide greater financial protection and security to individuals, especially if they are financially dependent on their partner.

A cohabitation agreement is a legal document between two people who are living together who are not married. These agreements detail the financial arrangements during cohabitation and set out what happens if the relationship breaks down.

A cohabitation agreement may be entered into when parties intend to move in together or are already living together.

If a cohabiting couple separates, assets will be divided between the parties in accordance with their legal and beneficial ownership.

Therefore, if an asset is legally owned by one party, the other party will not have a financial claim to that asset unless they can prove they have acquired a beneficial interest.

If a cohabiting couple reach an agreement on separation which differs from the legal position, a separation agreement can be entered into to provide for this.

Cohabiting couples cannot make financial claims against each other on separation in the same way that married couples can.

However, cohabiting couples could bring a civil claim under TOLATA 1996 regarding property ownership. Alternatively, they may bring a claim under Schedule 1 of the Children Act for financial provision for the benefit of the children.

If the family home is legally in the sole name of one party, the starting point is that the other party will not have any legal rights to that property unless they can prove that they have acquired a beneficial interest.

For example, this may be evidenced by way of a declaration of trust or other written evidence of an agreement between the parties. Alternatively, they may be able to show that they have made financial contributions to the property, such as by paying towards the mortgage.

If this cannot be shown, it will mean that they will have no right to continue living in the property and will have to leave.

It also means that if the party who owns the house dies, unless this property is left to their partner in their will, they will not automatically inherit the property.

Couples that are engaged do have more legal rights and protections than other unmarried couples, by virtue of the Married Women’s Property Act 1882.

In particular, an application could be made to the court to declare ownership of property and personal possessions, and order or postpone a sale. The court also has more discretion to make such order with respect to the property as it thinks fit.