Unmarried/Cohabitating Families

Many couples live together without getting married or forming a civil partnership. While some people are clear on the implications of cohabitation, many do not realise that there is a lack of legal protection for them, in the event of a partner’s death or the couple separating. Cohabitants’ rights are more patchy and complex than many think, and the law that applies in the event of a dispute can be uncertain and difficult to apply.

We advise individuals from all types of modern family structures, in a diverse range of situations. Our clients seek advice on many aspects of family life, including:

• Making arrangements for children after separation
• Building families and fertility law
• Entering into a pre-nuptial or pre-partnership agreement 
• Cohabitation agreements and deeds of trust
• Shared home and other property disputes
• Financial provision for children under Schedule 1 of the Children Act 1989

Cohabitation and the law

There is no such thing as a “common law spouse”. It is incorrect to say that, after living together for a certain period, cohabitants acquire any specific rights. However, due to a patchwork of legal provisions and official classifications as to what constitutes a family unit, the misconception that “common law marriage” is a specific legal status persists.

Cohabitants can experience hardship if they separate, or if one of them dies.

Protecting your rights

If you are living with someone or plan to, it is wise to protect any asset/s that you bring into the relationship/family structure or contribute to.

Consider what you would want to happen with the equity in your home and other significant assets, if you did split up. If you plan to own a property jointly, the equity would be divided 50/50 in the vast majority of cases, unless the paperwork says otherwise. If this is not what you want – maybe because you will be contributing different amounts towards the purchase price or mortgage instalments – you need absolute, written and enforceable clarity. If you move in together and only one of you owns the property, it is possible for the one with no ownership to acquire a financial interest in the equity if they make contributions towards the mortgage or improvements to the property, or if it can be shown you both intended to share the equity, and relied upon that intention.

Provided things are agreed, your respective shares in a property can be set before or during the period of ownership. Our advice is always the same, agree everything in writing. We would always advise couples to consider the position before moving in together, if at all possible.

Cohabitation agreements

A cohabitation agreement is a legally binding contract entered into by two people who either are or are about to start living together, and sets out their financial obligations to one another. This can be as simple as setting out how the proceeds of sale of a property will be divided if the relationship ends, or as complicated as a lengthy document dealing with all elements of a couple’s financial life together. The agreement might:

• Set out how a shared property would be dealt with in the event of separation
• Deal with how much each partner will contribute towards household expenses 
• Clarify the ownership of expensive items, such as cars or jewellery

The aim of a cohabitation agreement is to reduce the uncertainty that can exist when a couple sharing a home separate. We regularly draft and advise on cohabitation agreements, and can deliver a bespoke solution tailored to the specifics of your family situation.

Declaration of trust

A declaration of trust is a document dealing with the ownership of a specific property. It can be entered to before a property is acquired or afterwards, although the relative shares can only be changed by agreement. The declaration may be part of the transfer document signed when a property is bought, or a separate document, depending on the circumstances.

The declaration could say that person A is entitled to a given percentage of the net proceeds of sale, and person B is entitled to the rest. Alternatively, it might say that one person is entitled to a set amount of equity, with the balance divided in whatever shares you agree. There are very many possibilities.

Wills

Everyone should have a will. Wills are particularly important for cohabiting families, as the intestacy rules do not recognise the position of cohabitants, or make provision for children dependent upon the deceased, if they are not related biologically or by adoption to the deceased. If a person in a cohabiting relationship dies without a will, the surviving partner will not inherit their estate, apart from property owned as joint tenants and policies of which they are a named beneficiary. The assets may go back to the deceased’s biological family whether this is what the cohabitant/s wanted or not. A surviving cohabitant may have no right to any assets whatsoever, or may have to initiate expensive and lengthy court proceedings.

Cohabitation disputes

For couples who live together, there is no equivalent system to the comprehensive process for married couples dividing assets on divorce. Instead, in the event of their relationship breaking down, each disputed asset is dealt with as a separate entity, applying the relevant law on trusts and property. Whilst the family dynamics may be very similar to those involved in a divorce or civil partnership dissolution, the relevant law and procedure is not, and calls for a radically different approach, which has more in common with civil litigation than family law.

Cohabitation disputes can be legally straightforward, for example if the documentation is clear on how the equity in a property should be divided. However, these types of disputes can be extremely complex, particularly when there is a dispute about what was intended, and there is no express declaration of trust. Extensive evidence going back many years may need to be assembled and analysed.

The majority of disputes can be resolved by negotiation, or through a non-court dispute resolution process. However, where the involvement of the court is needed, we have significant experience in protecting our clients’ interests through the courts. As a full service law firm, we can draw on the expertise of colleagues across a range of legal disciplines – including civil litigation, trusts and estate planning – in order to provide you with a first rate service.

We have experience across a wide variety of disputes between cohabitants, including:

• Joint ownership cases where one party refuses to cooperate in a sale
• Disputes involving loans or gifts made by parents and other relatives
• Sole ownership disputes where one party argues for a financial interest in a property of which they are not a legal owner
• Issues arising between separating cohabitants who have been in business together

Financial provision for children

If a couple has children but are not married or in a civil partnership, the court can make financial orders for any child’s benefit under the Children Act 1989. Subject to their resources, the financially better off parent may have to provide dependent children and the parent caring for them with a home and/or other payments to meet their needs.

The court can also order a parent to pay or contribute towards school fees, expenses relating to a child’s disabilities, and provide funding for other items such as a car and furniture for the home. The amount and type of provision will depend very much on your individual circumstances, and those of your former partner.

Although most child maintenance payments are dealt in accordance with the Child Maintenance Service scheme (the successor of the Child Support Agency) rather than the courts, judges can still order that this maintenance be “topped up” where the paying party’s income is high (exceeds £156,000).

We have considerable expertise in this highly specialised area, acting for both paying and receiving parties in cases involving high worth individuals. For more information visit our dedicated page.

Experience

• M v F [2018] EWFC 35 - High value Schedule 1 proceedings, worldwide freezing order and enforcement and costs provision.
• Dickson v Rennie [2014] 2014 4306 (Fam)