The Rights of Cohabiting Couples

This year, Resolution, a body of family justice professionals committed to resolving issues in a constructive way, have decided to focus on the issue of cohabitation reform as part of their upcoming Awareness Week. It is the view of many legal professionals that the law in relation to cohabiting couples needs to reform as it is not fit for purpose in circumstances where couples are cohabiting in greater numbers, without ever getting married or forming a civil partnership.

Between 1996 and 2021, there was a 144% increase in the number of couples cohabiting and with societal changes (as well as economic changes), this is a trend that seems likely to continue in the coming years.

Often, parties who choose to cohabit without getting married or forming a civil partnership have no real understanding of the protections they are afforded as a result of their relationship, so it is useful to set out a few of the key principles that apply, as well as the options available to couples if they wish to create more formal arrangements.

Do you automatically gain legal protection as a result of being in a cohabiting relationship?

In short, the answer is no, at least not in the way you would if you were married or in a civil partnership. The rights to financial remedy for married couples and those in civil partnerships emanate from the Matrimonial Causes Act 1973. This allows parties who are married or in a civil partnership to make a claim for capital, income or pensions on divorce. The starting point on divorce is the equal division of the matrimonial assets, regardless of whose name they are held, a position which can be departed from to ensure that each party’s needs are met in relation to housing, income, retirement etc.

No such specific legislation exists in relation to cohabiting relationships in the event of separation and, despite what many people believe, the concept of a ‘common law marriage’ is a myth. The default position is each party will retain only those assets in their sole name, and the division of joint assets will depend on the application of the applicable property laws. Unlike in divorce, you do not automatically gain an interest in your partner’s assets as a result of the relationship, regardless of its length.

This can mean that the financially weaker party is left to rely on a combination of property law and the law of trusts to secure any sort of financial provision on separation, a process which can be a considerable uphill task.

What if you have made a specific financial contribution to the joint finances?

Two fairly common examples of this is where: (a) a cohabiting couple has purchased a property in joint names using a deposit from one party’s parents or (b) where one party moves in to the solely owned property of their partner and begins to contribute to the household expenses.

In both these scenarios, and in virtually all scenarios of specific financial contribution, your ability to recoup/retain these funds or show an entitlement will depend on your actions prior to separation. The starting point would be to see what documents exist which may outline an agreement on what is to happen on separation. In the event there is no clear written agreement, it will be necessary to try and show some kind of common intention through conduct, but this is clearly more difficult and will turn on the facts of each individual case.

What if you have children during a cohabiting relationship?

The fact that you have a child with a cohabiting partner will not change your position in terms of your entitlement to financial provision from them on separation. It is possible, however, to seek financial provision for the child in the event of separation under Schedule 1 of the Children Act.

Schedule 1 claims are claims exclusively for the benefit for the child and will be assessed based on their needs alone. Each claim is considered on its own merits, but a court may seek to make orders that will ensure that the child has financial provision in the form of, say, secure accommodation close to their current school.

The obligation to pay child maintenance is also unaffected by marital status. Child maintenance can be agreed between the parties by themselves, or a party can seek an assessment via the Child Maintenance Service to establish what is payable. Once an assessment is made, the CMS will have exclusive jurisdiction over what is payable and enforcement of the same.

How can you protect yourself as a cohabitee?

Those in a cohabiting relationship should consider putting in place clear legal agreements to govern what is to happen in the event of separation due to the lack of specific legislation available.

Cohabitation agreements: This is a written and signed document, which operates like a contract between the parties. It will principally deal with: (i) who owns what at the time of the agreement, and in what proportions; (ii) what financial arrangements you have decided to make while you are living together; and (iii) how property, assets and income should be divided if you should split up. The agreement itself can be quite a versatile document and can cover a wide range of arrangements, including gifts, property and the payment of bills.

Declaration of trust: a declaration of trust is a binding document which sets out how you have agreed to hold the beneficial interest in a property. It is regularly used where one party has contributed a greater sum to the purchase of a property, either through use of their own funds or through funding from parents. The declaration can ensure that these sums are repaid on the sale of the property.

It should be noted that whilst it cannot be guaranteed that any cohabitation agreement drawn up will be upheld by the court in the event of a dispute, steps can be taken in the preparation of the agreement to ensure it is as effective as reasonably possible.

Resolving cohabitation disputes can be time consuming and costly, so it is better to take proactive action in advance to ensure that everyone is on the same page in the event of a separation.