4 top tips for cohabiting couples

The number of cohabiting couple families has risen significantly in the last decade and, yet, there remains a myth that common law marriage exists and that cohabiting couples automatically have legal rights and protection if their relationship ends or their partner dies.

It is widely misunderstood that unmarried couples choosing to live together share the same legal rights as married couples, but this is simply not the case. The law does not recognise cohabiting couples in the same way as those who are married or in a civil partnership.

No matter how many years you have lived together, and irrespective of whether you have had children, you do not have the same legal rights and responsibilities as married couples or registered civil partners. For many, this can come as a great shock, especially if the relationship has been long or the couple have children together.

Married couples, and those in registered civil partnerships, automatically have legal claims for financial support (otherwise known as maintenance) and a share of the capital and pension assets. This will include, for example:

• the family home 
• bank accounts 
• savings
• investments
• business assets, and
• pension funds

However, no such claims automatically exist for couples choosing to live together without getting married or entering a registered civil partnership.

If there are children, you may be able to bring a claim on behalf of any minor children, particularly for housing and child maintenance, but even then, the provision will be limited until the children reach maturity.

Many couples live together without realising the legal implications. Many go on to purchase a home or investment property together without considering how to protect their financial contributions. 

With this in mind, cohabiting couples should do the following to protect themselves:

1. Speak to a specialist family lawyer to ensure you fully understand your legal rights and responsibilities. Legal advice should be obtained as early as possible and ideally before you move in together. However, if you are already cohabiting or, if your relationship has unfortunately broken down, you should seek legal advice to ensure you understand what options are available to you.
2. If you wish to purchase property together, you should ensure that both names are on the title deeds for the property and that all contributions are documented. If your name is on the title deeds, you will have a claim against the property. If it is not, you may find it very difficult to successfully claim that you have an interest in the property owned in the other’s sole name, unless you can produce evidence of a direct financial contribution to the value of the property. Disputes over whether a non-owning cohabitant has an interest in a property can be costly and lengthy.
3. Any couple wishing to own property jointly but in unequal shares should raise this with their solicitor at the time of purchase so that a legal document known as a Declaration of Trust can be prepared. This will record the manner in which the property is to be held and the shares owned by each party. This is particularly important if one party is contributing more than the other to the purchase price. 
4.  In addition, the couple should consider preparing a Living Together or Cohabitation Agreement. This can, amongst other things, set out how the couple will deal with separate and joint property, how the household expenses and mortgage will be paid, responsibility for any debts, how any joint account will run, responsibility for renovations and structural repairs, financial support between the parties and for any children, and what is to happen to any property should the relationship end. 

Resolution, a community of family justice professionals who work with families and individuals to resolve issues in a constructive way, are amongst many who are actively campaigning for change. The government needs to recognise certain rights of cohabiting couples when they split and there needs to be a greater awareness so cohabiting couples can take measures to protect themselves. 

Until the law is changed, cohabiting couples should ensure they have a clear understanding of what rights they have and what they can do to protect themselves.

For more information in relation to these issues, please contact our specialist Family and Divorce team for a free initial 15-minute conversation. I am based in our Colchester office and can be contacted on 01206 217378 or [email protected].