The legal rights behind cohabitation: what unmarried couples need to know

Cohabitation is back in the news after the UK government commissioned a consultation to review the law, or lack of it, around such relationships.

“Cohabitation” describes two people living together in a committed relationship without being married or in a civil partnership. Although the term “cohabitation” has been used for centuries, many couples still mistakenly believe in the concept of the “common law husband” or “common law wife” and assume it gives them the same legal rights as married couples.

Unfortunately, “common law” partner rights is a misconception. When a cohabitation relationship ends, or one partner dies, many cohabitants in the UK are shocked to discover that, despite living together for 10, 20 or even 30 years, they may have few, if any, automatic legal rights or financial entitlements.

The review is intended to lead to the creation of a statutory framework covering the rights and protections for cohabitants. This has been spurred on by the Office for National Statistics report for England and Wales 2021/22, which indicated that in 2022, the proportion of married couples has now fallen to below 50% (49.4%). There are approximately 3.6 million cohabiting couples now residing in England and Wales, the fastest growing family group.

Previous recommendations and reports have bit the dust, such as the 2007 Law Commission published report, which made recommendations regarding the law in respect of property and finances when a cohabitation relationship ends.

Will we live to see such reforms brought to fruition? Only time will tell, but at least it is on the agenda again.

So, what are the current main legal options open to UK cohabitants relating to financial claims on the breakdown of a relationship? Basically, they relate to claims brought on behalf of the parties’ children, or to establish they have a legal interest in property.

Schedule 1 of the Children Act 1989

Schedule 1 of the Children Act 1989 allows the court to make financial provision for children following the separation of unmarried parents. It is most commonly used where a former cohabiting partner seeks financial support to provide a home for a child during their childhood. In many cases, the property is held for the benefit of the child until they reach adulthood or complete their education, after which it typically reverts to the other parent.

The court can also make lump sum and maintenance orders to meet a child’s financial needs. Any provision made under Schedule 1 is focused solely on the welfare and needs of the child or children, rather than creating financial rights for either parent.

Trust of Land and Appointment of Trustees Act (TOLATA) 1996

A claim under the Trusts of Land and Appointment of Trustees Act (TOLATA) 1996 can be used to resolve disputes between co-owners of a property. It can also be brought by a cohabiting or former cohabiting partner whose name does not appear on the Land Registry title, but who believes they have acquired a beneficial interest in the property.

A beneficial interest may arise through an implied, constructive or resulting trust. This could be based on factors such as financial contributions towards the purchase price, funding property improvements, reducing the mortgage capital, or relying on promises made by the legal owner during the relationship to their detriment.

If successful, the court may recognise that the claimant has an interest in the property or determine that their existing beneficial interest is greater than previously recognised.

Inheritance (Provision for Family and Dependants) Act 1975

The Inheritance (Provision for Family and Dependants) Act 1975 allows a cohabiting partner to bring a claim against a deceased partner’s estate where they had lived together in the same household for at least two years immediately before the death.

A claim may be successful where the deceased has failed to make reasonable financial provision for the cohabitee’s maintenance, assessed according to the circumstances of the case and the standard applicable to that claimant. Although “maintenance” is not defined in the legislation, it is generally interpreted as the provision necessary for the claimant to meet their reasonable needs. This may include housing requirements and other living expenses, but is not intended to provide either a luxurious lifestyle or merely a basic subsistence level of support.

Claims brought by cohabitees will often result in a lower award than those made to spouses or civil partners in comparable circumstances. This is because spouses and civil partners are assessed under a wider test of what it is reasonable for them to receive from the estate, rather than the more limited maintenance-based test that applies to cohabitees.

How to protect yourself

If you are in a cohabitation and investing in a property:

• Make sure your name is included on the title and set out your agreed percentage shares are stated in the transfer deed
• Draw up a cohabitation agreement, which clearly sets out the arrangements made between you both, and keep this under review if changes are made
• Keep clear records of any agreements reached between you during the relationship
• Retain receipts for contributions towards home improvements, bank statements showing the transfer of funds for use in such improvements, and mortgage repayments made
• Keep records of any agreements between you and your cohabitant, together with evidence of any financial or other contributions made, as these may help support your position in the event of a dispute

Whilst the law may not currently give people in a cohabitation the same automatic protection as a married couple, there are sensible steps you can take to safeguard your future at the beginning of the relationship. Astle Paterson can help you:

• Draw up a cohabitation agreement at the commencement of your relationship, a contract which sets out the arrangements agreed between you both
• Prepare a will to ensure your cohabitant is provided for after your death, or put trust arrangements in place during your lifetime to protect assets such as your home
• On the joint purchase of a property with your cohabitee
• Draw up a declaration of trust, for example if you invest more funds into the property than your partner

We can also advise you at the breakdown of the relationship and if appropriate litigate claims on your behalf.

If you require any such assistance regarding cohabitation rights, please get in touch with the team at Astle Paterson.

For more information on family law and cohabitation rights, please contact our expert, trusted Family Law & Divorce team on 01283 531366 or email enquiries@astlepaterson.co.uk.

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