Frequently asked questions about cohabitation
What rights do I have when I split up from my partner if we’re not married?
The short answer is: far less than if you were married. Unmarried couples who separate may be able to make claims against property that they own jointly or that one partner owns solely. Unlike divorcing couples, they cannot receive a share of the other’s pension; receive a lump sum payment (except in limited circumstances relating to children); have property transferred to them; or receive spousal maintenance.
But we’ve been together for years. Surely the court will recognise this?
Not necessarily. The concept of a common law spouse does not exist in English law (save for in exceptional circumstances). You could be living together for 30 years and the law will still treat you as cohabitants.
The court usually tries to do its best to help out the financially weaker partner but its powers are limited.
There is talk of the law being changed to reflect the increasing numbers of couples who choose not to marry but this is unlikely to happen any time soon. There is simply no political will to change things at the moment.
How does the court decide who gets what?
Broadly speaking, the court will look at the cohabiting couple’s shared intentions in relation to any property you own. It may be that there is written evidence showing how the couple agreed any property should be owned – for example. in equal shares, in unequal shares; or one partner owning the property in its entirety.
Isn’t it simply about what’s fair?
Not to the same extent as if you were getting divorced. Put simply, if you divorce, the court’s guiding principle is fairness. But if you separate whilst cohabiting, the court’s concern is the couple’s shared intentions (which can produce seemingly unfair outcomes).
You may conclude that you will be worse off financially if you are not married when you separate as any claims you can bring against your former partner are much more limited than on divorce. Of course, it works both ways and you could be in a far stronger financial position if you are cohabiting and don’t have to share your assets.
What about the children?
The law does not distinguish between married and cohabiting couples when determining with whom the children should live on separation and how much time the children should spend with the other parent.
Likewise, the non-resident parent will have to pay child support regardless of whether he or she was married to the other parent. This is dealt with by the Child Maintenance Service and not the courts (except in limited circumstances).
The court can make additional financial provision for the parent who has care of the child but this is unusual and only applies when the non-resident parent is rich. Even then, the provision is based on the parent’s role as the child’s carer and does not seek to share the assets as is the case with divorcing couples.
What does it cost in terms of legal fees?
It depends on what issues are in dispute and how long matters take to resolve. It is important to bear in mind that (unlike with divorce cases) the loser pays the winner’s costs at the end of any court proceedings. This means that you will not only have to pay your own legal fees but also your ex-partner’s. It is crucial therefore to have early expert input from a solicitor who specialises in this area of law. He or she can advise you on whether you have a claim before you embark on any litigation and both incur more costs and potentially expose yourself to paying your ex-partner’s costs too.
If you have further questions then contact the firm and ask to speak to a specialist cohabitation solicitor.