Cohabitation and the law

PUBLISHED: 09:37 06 April 2016 | UPDATED: 09:37 06 April 2016

Putting in place legal agreements over property and children will prevent more heartache if a cohabiting couple seperate

Putting in place legal agreements over property and children will prevent more heartache if a cohabiting couple seperate


Despite a rise in the number of people living together without marrying, the legal position for unmarried couples on separation is far from widely understood. Tracey Dargan, family team partner at Longmores Solicitors in Hertford, outlines the situation and arrangements to put things on a firm footing

The ‘common-law husband and wife’ myth

There is an evergreen myth that there is such a thing as a common-law marriage. In reality, unmarried couples do not acquire the same or similar rights to a married couple, however long they might live together. Under English law, on divorce, spouses can apply to the court for income and capital orders for their own benefit. Unmarried couples have no right to make similar applications, and are limited to claims over property and children.

Child-related claims

A parent can apply to the Child Maintenance Service for a child maintenance assessment. They can also apply to the court for a ‘top up’ maintenance order if the paying parent earns more than £156,000 gross per annum.

In some cases, the parent can also apply to the court for a lump sum and property provision for the children. This means that once the children reach the age of 18 the financial support will usually cease and any property that has been provided reverts back to the parent that provided it. The other parent may then be left without a home or any financial support.

Property claims

There is no automatic right to make a claim against property that is owned by a former partner or to claim a greater share in jointly owned property.

If you claim that the legal ownership of a property does not reflect the real situation, then the main issue for the court will be to work out what your shared intentions were. If you made no explicit statement of what you intended, the court will have the difficult task of looking at your conduct in relation to the property in order to establish your intention.

Practical Solutions to save you the expense and stress of litigation

Cohabitation agreement

A couple can enter into a legally-binding agreement to share assets in a particular way and provide financial support in the event of a relationship break down. This would provide some certainty. The financially weaker party will have the security and stability of knowing that they will not be left high and dry on separation. The financially stronger may obtain some protection against a future change in the law.

Declaration of trust

Before buying a property together, decide the shares in which you will own the property and expressly set out what they are in the deed of transfer or a declaration of trust. If the property is being bought by one of you and it is not intended that the other will have an interest in it then an agreement should be executed to evidence that this is the case.

Make a will

As a former cohabitant, you have no automatic right to inherit from your partner’s estate on their death, even if there are children. It is therefore vital to make a will.

For further advice on cohabitation agreements or any other family law issues, call Longmores on 01992 300333.

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