Legal Rights of cohabiting parties

Posted: Wednesday March 18 2020

By: Rachel Roberts

I regularly take instructions from new clients who have lived with their partners for a number of years and are confused about what rights this may give rise to if they separate. Worst still, they often hold incorrect beliefs as to what they are entitled to, and in many cases have relied upon those beliefs throughout the relationship and made decisions based on false premises. In my time in practice, I have experienced an increase in the number of enquires of this nature, which is doubtless borne out of the decreasing number of marriages taking place. The high cost of weddings along with diminishing societal pressure to get married are just a couple of reasons why marriage rates have reached an all-time low since records began.

Legal Rights of cohabiting parties

According to the Office for National Statistics, the proportion of the population aged 16 years and over in England and Wales who are married has steadily declined to 50.5% in 2018. Meanwhile, the number of cohabitees has increased to 5 million people – over a 50% increase since records began. 

The difference between marriage and cohabitation

The starting point, which I find often comes as a shock to clients, is that it is largely a myth that cohabiting gives you the same legal protection after the breakdown of your relationship. The law is very different to when a marriage breaks down, in that you are not entitled simply by virtue of your relationship to make a claim against your partner’s finances, be it income, pension, savings, or even property.  

While the terminology of “common law spouse” is used socially, legally, the position of someone who cohabits is very different from that of someone who is married. Ultimately cohabitants have little or no legal protection at the end of a relationship, irrespective of how much time they have spent together. Where there has been an engagement and a commitment to marry, there are some fairly limited additional provisions that you may be able to rely on, but in practice these are rarely used.

 

Cohabitants rarely understand the legal implications of moving in with their partner or purchasing property with them. The significance of who legally owns the house (so the person whose name is on the title deeds) is far more important than when you are married, and your prospects of seeking a share of assets which are not owned in your name are significantly reduced outside of marriage. 

Lots of cohabitants do not understand that if their relationship breaks down then they do not generally have any entitlement to maintenance even if they have been the weaker party financially and/or have been dependant on their partner during the relationship. The only statutory obligation is for the payment of child maintenance for any children of the relationship. I have dealt with many cases where this has led to significant financial hardship.

Statutory financial support for children is often paid via the Child Maintenance Service. It is worth considering their website which contains details of how an assessment is carried out, the factors that are taken into account and how to apply through them. People are encouraged to first try and reach a voluntary arrangement, but if not, the CMS can both do an assessment and assist in collecting the maintenance (at a cost).

You may be able to make financial claims in certain circumstances 

All that said, there are certain legal options available if there is a dispute over property or relating to financial provision for children. 

If the dispute relates to a property that is jointly owned but the shares are disputed, or is in one of the party’s name but the other thinks they are entitled to a share, a claim can be bought under the Trusts of Land and Appointment of Trustees Act 1996 to ask the court to decide what share of the property each party owns and decide whether it should be sold to release one party’s share. 

In very broad terms, the claimant would generally need to show both contributions to the property and a common intention of both parties for that to lead to an interest in the property. The law surrounding this is complex and these civil proceedings can be costly so it’s worth getting legal advice before beginning a claim, not least because there can be cost consequences if you bring an unsuccessful claim.  Upon initialling taking legal advice, a solicitor would need to take a great deal of detail about the history of the contributions and discussions round ownership to be able to form a view on the merits of a claim. For that reason, it is worth preparing for an initial meeting and taking as much information as you can to it.

If you have children, you may be able to make a claim under Schedule 1 of the Children Act for financial provision for the children from the other parent. The court can deal with maintenance for children in limited circumstances, such as where the payer is a very high earner to top up statutory provision (paid via a Child Maintenance Service assessment) and/or for school fees,  and can make capital orders such as payment of a lump sum or transfer of a property for the benefit of the children, usually until they’re 18. This litigation is actually relatively rare and can be complicated and expensive, so legal advice is key.

Things you can do to protect yourself

Declaration of trust

If you’re cohabiting, you should consider completing a declaration of trust (a document confirming the proportions in which two or more individuals own a property). It is particularly important where one party has contributed more and wishes to protect that on a future sale, but it can also reflect another agreement between the parties regardless of financial contributions. It will create certainty from the start, thereby avoiding a costly dispute if the relationship ends. It is worth noting that you can enter in to a declaration of trust at any time, either at the time of purchase or at a later date

Cohabitation agreement

I would strongly recommend having a cohabitation agreement in place, which can deal with many other matters including payment of the mortgage and other bills, home improvements and what will happen should the relationship breakdown

Make a will

It’s important to make a valid will, because if you were to die without having left one, under the rules of intestacy, unmarried couples do not inherit assets owned by the other party, though joint assets may pass depending on how they are owned. There may be the possibility of making a claim against the estate for provision but again, this litigation is costly and uncertain and it is better to plan ahead.

 

The future of cohabiting couples’ rights

There have been calls over many years for a review of this area of law. A national family organisation is lobbying the government to reform the rights of cohabiting couples. With only a third of couples being aware of the limits of their rights as cohabitants, it is time for the law to catch up with modern society so that cohabiting couples are not at risk if the relationship ends. However, in the current political climate with so many other things on the agenda, any reform seems some way off, so it is important that people have increased awareness of the current status.

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