Cohabitation Rights
Since the early 1970s, there has been a gradual long-term decline in marriage rates. In contrast, the number of cohabitants continues to rise and they are the fastest growing family type in the UK, having doubled in the last 20 years. Today, cohabiting couples represent around 1 in every 5 families in the UK.
A common misconception is that cohabitation forms a ‘common law marriage’, but these do not exist in the UK. Cohabitants do not enjoy the same rights or financial protection as married couples. This page should help clarify the rights of cohabitees and help to dispel the common law marriage myth.
Property rights of cohabitees
How the property is owned will depend on the title documentation (this records the legal title) or any declarations of trust (which records the parties’ beneficial interest in the property) for any property owned by the parties.
There are three key ways that cohabitees can own property:
- Sole ownership – one party owns the property in their sole name and non-owning partner is permitted to live there. The risk with sole ownership is that the non-owning partner could make a claim that a constructive trust has been created for the beneficial interest in the property, even if they are not on the legal title. This can cause uncertainty for the owning party and the non-owning party will need to make a potentially lengthy and costly claim to assert their interest in the property.
- Tenants in common – the property is owned jointly, but in unequal shares. This is helpful for couples who are contributing unequal amounts to the purchase property. To ensure the beneficial interest in the land is held in the intended shares, a declaration of trust should be entered into. On death of either party, the property will not automatically pass to the other person, but it can be passed through a will to the intended beneficiary.
- Joint tenants – regardless of the contribution to the property, the parties own the property in joint and equal shares. Upon death of either partner, their share in the property automatically passed to the surviving partner.
What are the risks of cohabitation?
As there are no familial legal rights of protection for cohabitees in respect of their joint assets, in the event of a relationship break down, property ownership is decided by the law of property. This law does not take into account any other contributions made to the relationship, whereas in marriage financial and other contributions (to things such as maintaining the home or raising the children) are taken into account when deciding how the assets are divided.
The court’s starting point for divorcing couples is that the assets should be split 50/50, but this will be departed from to meet the needs of either of the parties.
What financial maintenance can cohabitants claim after separation?
Divorcing couples may be able to claim spousal maintenance payments from their ex-partner. The same is not available to cohabitees. If the couple has children, they may claim maintenance for their child from their ex-partner.
Child Maintenance Service (“CMS”)
The CMS administers the statutory child maintenance scheme which covers the payment of a child’s living costs when that child does not live in a household with both of their parents. The CMS will only deal with parties whose income is lower than £150,000 per annum and who live in the UK.
If the parents/guardians are sharing care equally, neither will be required to pay the other maintenance through the CMS. Full time students without income and those in prison will also not be required to make any child maintenance payments.
Schedule 1 of the Children Act 1989
On the cohabitees’ separation, the court can also make orders for financial provision to be paid by one parent to the other where the makeup of the family falls outside of the jurisdiction of the CMS. They can also make orders for unlimited lump sum orders for things such as housing or a car.
The courts powers under Schedule 1 are more limited than divorcing couples who are seeking financial provision. The party seeking financial provision will need to consider how they will fund their legal costs for bringing an application, although those costs can, in certain cases, be recovered from the paying party at the end of proceedings.
How we can help protect your position as a cohabitee
As there are insufficient protections in place for cohabiting couples, having the following documents in place can help both during the relationship and in the unfortunate event of it breaking down.
- Cohabitation agreement – these can set out the terms of what should happen to the shared or separate property and how each person will contribute to the finances of the relationship.
- Declaration of trust – as discussed above, any couple who purchases a property as tenants in common should have a declaration of trust in place.
- Wills – if one cohabitee dies without a will, their unmarried partner will not automatically have a right to inherit their assets. Instead, their estate will be passed down in accordance with the intestacy rules, and their assets will pass to their next living relative. Cohabiting couples having wills in place will ensure anything they own together will be dealt with as intended.
Contact the Family Team if you need help in protecting your position as a cohabitee.