We have a wealth of experience in helping couples to reach a fair and reasonable settlement
Living TogetherBe sure of your rights We have a wealth of experience in helping couples to reach a fair and reasonable settlement
If your relationship breaks down and you were not married or in a civil partnership, the legal issues you face may be complex. Contrary to popular belief, couples who cohabit do not have the same rights as married couples when the relationship breaks down. The absence of a ‘common law marriage’ in our legal system means that the protection available to cohabiting couples is limited and obtaining legal advice is crucial in order to understand what your entitlements may be when the relationship comes to an end.
What issues might arise?
For the large part, financial entitlements available to divorcing couples do not extend to cohabiting couples, no matter how long the couple have been in a relationship. 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.
On relationship breakdown, disagreement between former cohabitants can arise in relation to the division of property, such as the home in which the parties lived, as well as disagreement as to how any children will be provided for.
- Property issues
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, it could be argued that a resulting or constructive trust may have arisen and advice should be taken to determine whether a party can be said to have acquired a beneficial interest.
- Issues relating to children
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 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.
How can we help?
We have a wealth of experience in helping individuals to navigate this often complex area of law. We advise clients 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, our specialist family lawyers will work with you to offer creative strategies to achieve the best settlement for you.
Couples can, to an extent, mitigate uncertainty by entering into a cohabitation or relationship agreement or declaration of trust to regulate their financial affairs whilst they live together and to specifically identify ownership of property and in what shares any property is to be held. Our team of family law experts have considerable experience in drawing up such documentation which can help to avoid any ambiguity regarding property ownership should the relationship come to an end.
The lack of a family focused legal framework for people who have lived together as a cohabitants means that many couples prefer to find solutions in processes such as mediation or through collaborative law. We are uniquely placed to provide the expert help that many couples need to find their own solutions and we do so in a sensible and pragmatic way. For more information on the various process options available to our clients including solicitor-led negotiation and litigation, please click here.
Our blogs and podcasts on cohabitation provide more information: