Declaration of trust – an agreement that confirms the proportions in which two or more individuals own property, for example, the amount of equity for each party or how it will be split should the relationship breakdown.
Cohabitation agreement – details, amongst others, how property, capital and assets are owned and should be divided; arrangements for children; finances (mortgage and bank accounts) and next of kin. To ensure that the agreement is correctly drafted and given full legal effect, you should consult a solicitor who will provide legal advice.
Make a will – it is also important to make a valid will. If you were to die without leaving a will, unmarried cohabitees do not inherit under the rules of intestacy.
Trust of Land and Appointment of Trustees Act 1996 (ToLATA)
You can make a claim to ask the court to decide what share of the property each party owns and decide whether it should be sold to release one party’s share. This is a civil claim and has cost implications.
Schedule 1 Applications
You can make a claim for financial provision for the children from the other parent. This can be maintenance or a lump-sum but will be dependent on your family circumstances.
The law for unmarried couples (or common law partners) is complex, so please do seek legal advice from family lawyers as soon as possible to understand your legal rights.
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As the marriage rate in England and Wales continues to fall, the number of unmarried but cohabiting couples (common law marriage) is on the rise. However, there is currently no law in England and Wales which recognises the needs of a cohabiting couple if their relationship breaks down, as there is with divorce. In the event of a property dispute, trust and land law is applied instead.
There are, however, laws concerning the children of cohabiting couples who separate. The law makes no distinction between married and unmarried parents when deciding such issues as who the child (or children) will live with and how often they will see the other parent.
The key legal difference between married and cohabiting couples is the financial provisions the court can make for the other party when they separate. These are much more limited for cohabiting couples.
If you cannot, or simply do not want to, marry your partner there are steps you can take to ensure that your partner and any children will be provided for should anything unexpected happen to you.
Decide how property and assets should be owned or divided. In order to ensure that the cohabitation agreement that covers these matters is correctly drafted and given full legal effect, you should consult a solicitor at Stowe Family Law solicitors.
For example, if you are about to purchase a property together with a partner it is essential that, before the sale takes place, ownership of that property is agreed and reflected in an appropriate declaration of trust. As many former cohabitees have discovered to their cost, making claims about what may or may not have been agreed upon years before is unlikely to sway family courts without clear supporting evidence.
It is important to understand that cohabitees, no matter how long they have been living together, do not have the same rights upon the breakdown of the relationship as those available for married couples facing divorce.
The law does not recognise common law spouses or common law cohabiting in the way many people think. As a result, the breakdown of a relationship, or the death of one party, can be a financial disaster for a dependent cohabitee. There is no maintenance, and no automatic entitlement to property, capital or pension claims. The children of such a relationship may also be left at a financial disadvantage.
However there are some remedies for people facing the end of a cohabiting relationship. These include applications made on behalf of the children under the Children Act 1989 and financial arrangements. Stowe Family Law’s cohabitation solicitors will be happy to advise you further, and to consider the position also if the relationship ended due to the death of a party.
A civil partnership is a legal relationship which can be registered by two people who aren’t related to each other.
Civil partnerships are available to both same-sex couples and opposite-sex couples.
Entering civil partnership will give your relationship legal recognition. This will give you added legal rights, as well as responsibilities.
Once you have registered a civil partnership, it can only be ended if you or your partner dies, or by applying to court to bring the partnership legally to an end.
You cannot apply to bring a civil partnership to an end until it has lasted for at least one year.
Are my rights different because we live together and are not married?
Your rights as an unmarried person are significantly less than they would be had you married your partner. When the relationship breaks down that can then lead to some very difficult circumstances. It’s a commonly held myth that by living with somebody you become a common-law husband or wife that gives rise to rights, but that is just a myth.
How does it affect my family home?
At the time of purchasing a property, cohabiting couples may have declared about how they intend to hold the property and whether in equal shares, or in depending on their contributions. If the property is owned by one party the other party may be able to establish an interest in that property, usually based on the contributions that they’ve made to it. There may also be circumstances where it’s possible to preserve a home for the benefit of children of the relationship, but these are very complex legal issues that you do need to take advice upon.
What about any financial support?
There isn’t any legal right to make a claim for financial support against a person that you’ve lived with before, save in respect of child support for any dependent children and that’s usually dealt with via the child maintenance service, but payments can be agreed voluntarily. In addition, if the payor is a very high earner or extremely wealthy there may be further provision that can be made through the court.
…and arrangements for my children?
Arrangement for the children about within the same way whether you are married or unmarried. Ideally you would reach an agreement between yourselves about where the children are going to live where they will go to school etc. If you can’t do so that the court can make orders that will determine these issues.
So finally, how can a lawyer help me?
A lawyer can help before or during your relationship by drawing up documents such as the declaration of trust or a cohabitation agreement which could detail what shares you intend to own a property in who’s going to pay for what and who would be responsible for any debt. These documents can save costly and lengthy litigation if your relationship breaks down.