The increasing number of unmarried couples has made the legal rights of cohabitees a subject of hot debate. Cohabitation is the fastest-growing family type in the UK: in 2012, 5.9 million people were cohabiting,1 and it’s predicted that one in four couples will be cohabiting by 2031. 2 Despite this, the legal position for cohabitees on separation is far from widely understood.
The ‘common-law marriage’ myth that cohabitees have similar legal status to married couples is believed by 53 per cent of cohabiting couples. 3 This indicates that the position is misunderstood by more than half of the people it most concerns.
Under English law (which covers England and Wales), on divorce, married couples can apply to the court for income and capital orders. Without reasons to do otherwise, the court will try to split assets equally. Unmarried couples have no right to make similar applications, and are limited to claims over property and children.
These are limited by questions of legal and beneficial ownership of property, which is reliant on trust and land law principles.
It may be possible to persuade the court that even though a property appears to be owned equally by joint owners, in fact one person is entitled to more than half of the property. Alternatively, although a property appears to be owned by one person, in fact the owner holds all or part of the property ‘on trust’ for the other party.
When someone claims that the legal ownership does not reflect the real situation, the main issue for the court is to work out what the parties’ shared intentions were. If the couple made no explicit statement of what they intended, the court will look at the whole of the couple’s conduct in relation to the property.
A parent can apply to the Child Support Agency for child maintenance. A formula is applied to calculate the amount payable, as a percentage of the payer’s net income.
If the absent parent earns more than GBP104,000 net per year, a parent can apply to the court, under Schedule 1 of the Children Act 1989, for a ‘top up’ maintenance order, which can include an element for a carer’s allowance.
In some cases, the parent can also apply to the court for a lump sum and property provision for the children. This means that once the children reach the age of 18 the financial support will usually cease, and any property that has been provided reverts back to the parent that provided it. The other parent may then be left without a home or any financial support.
There is pressure for the law to be changed, but it is unclear whether this will happen. Unmarried couples should therefore take steps to protect themselves.
Before buying a property, a couple should decide the shares of their ownership and set this out in a declaration of trust. This is the best way to protect the couple’s interests and will be binding in almost all cases. If the non-owning party is to have no interest in the property, they should sign a waiver to confirm this.
A couple can enter a legally binding agreement to share assets in a particular way and provide financial support in a separation. This would provide some certainty. The financially weaker party will have the security and stability of knowing they will not be left without any support if the relationship breaks down. The richer party may obtain some protection against a future change in the law.
Make a will
If there is no will, a person dies intestate and property passes to their next of kin. An unmarried person has no rights under intestacy law. While a bereaved cohabitee can still make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, it is better to have a will in place.
- 1. Office for National Statistics, Short Report: Cohabitation in the UK, 2012, 1 November 2012, page 1
- 2. The Government Actuary’s Department, cited by Baroness Hale in Stack v Dowden  UKHL 17 
- 3. Resolution, ‘Living together: shared home, shared rights,’ Family Law, Bristol, vol 38, 17 September 2008
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