What are the rights of cohabiting couples?

Contrary to popular belief, couples who live together do not have the same legal rights as married couples. The concept of ‘common law marriage’ is a myth, and as unmarried couples are the fastest-growing family group in the UK, it is important to understand your rights.

What are cohabitees?

A cohabitee is anyone who is cohabiting with their partner but is not married to or in a civil partnership with them. Married partners or those in a civil partnership are automatically legally tied to one another regarding their property and assets. This does not apply to cohabitees and makes things complicated in the event of relationship breakdown or death.

What are my rights as a cohabitee?

As an unmarried cohabiting couple, you do not have the same legal rights and protections as those who are married or in a civil partnership. You will not be able to make a claim against any assets in the sole name of your partner, no matter how long your relationship lasts, even if you have children together.

If you live in your partner’s property and are not a legal owner, you will not have an automatic right to any share of the equity. There are circumstances where an interest could be established, but this can be complex and we recommend obtaining legal advice. Similarly, if unmarried couples are joint property owners but have not set out explicitly how their respective contributions to that property are to be dealt with when the property is sold, the starting point would be for the property value to be split equally as a default.

Unlike in cases where parties are married, the court is not required to divide the property equity in reflection of each party’s contributions or financial needs. In some circumstances, the courts have limited power to defer the sale of a property if it is needed for children, but cohabiting couples experience a significant disadvantage in this situation compared to married couples.

If you are entering into a potential long-term relationship with significant financial commitment, it is important that you are aware of what legal steps you can take to protect your interests in any property, asset or children you may have together.

How can I protect my legal rights as a cohabitee?

If you do choose to live together as an unmarried couple, there are ways to protect both of your financial interests.

Declaration of Trust

If you purchase a property with your partner or move into a property which they already own, it is important to consider:

• What financial contributions you are each making to that property
• What the purpose of buying the property is
• How the proceeds of the property will be divided when it is sold
• When the property will be sold

These agreements can be recorded in a Declaration of Trust, which can provide clarity and fairness.

It is important to protect your financial interest in a jointly owned property at the time you purchase it, rather than when the relationship breaks down.

Cohabitation agreements

Cohabiting couples can also enter into a cohabitation agreement, which can cover a wider range of assets in addition to a jointly owned property, and can extend to parenting arrangements.

Cohabitation agreements are recognised by the courts as a record of each party’s intentions in the relationship and can protect your rights in the event of relationship breakdown or death, such as your pension, life insurance, property and other assets.

We recommend that couples enter a cohabitation agreement at the time they start living together, i.e. when buying a house, but it can be drafted at any point. We can guide you through the process and support you in understanding how best to protect your cohabitee rights.

Writing a Will

If you are unmarried and you or your partner dies intestate (without a Will), there is no automatic presumption that your assets will pass to your partner as there is for married couples. You should consider writing a Will to ensure that your share of any property or assets is passed on as you would have intended after your death.

TOLATA claims

When cohabiting couples who own a property split up, the area of law used to determine ownership is called TOLATA (Trusts of Land and Appointment of Trustees Act 1996). If ex-partners can’t agree on ownership or what should happen to the home, TOLATA gives the court certain powers to determine who the beneficiaries of a property are, what their interest is, and decide what happens next.

Further information

If you are a cohabiting couple or considering moving in with your partner, you need to start thinking about what steps you can take to protect your legal rights in the future.

To speak to our family solicitors in Bristol, call us on 0117 325 2929 or fill out our online enquiry form.