Separation rights for cohabiting couples

Separation rights for cohabiting couples

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Like many family lawyers, I regularly meet with clients who are under the impression that, because they have lived with their partner for a long period of time, they automatically have a financial claim against their partner.

However, this is not the case. The starting point is that, unlike couples who are married or in a civil partnership, cohabiting couples do not automatically have financial claims against each other. In this blog, I am going to explore what this means in more detail and suggest why we advise that cohabiting couples put in place a cohabitation agreement to help avoid disputes.

Property

Property is clearly a key concern for couples, and likely to be the biggest asset they have to consider when making the decision to separate. Where a property is owned, the starting point is to look at how the property is owned, for example, is it owned by the couple jointly or by just one of them? I have written an earlier blog on property rights for cohabiting couples (read here), but the key points are outlined here.

Jointly owned property

A property can be owned jointly in two ways:

Joint Tenants

Where a property is owned as Joint Tenants the owners are deemed to be equal owners and if one of them were to die, that person’s interest in the property would automatically pass to the other owner.

Tenants in Common

Where a property is owned as Tenants in Common the owners each own shares in the property. Those shares could be held 50/50, 40/60, 99/1 or whatever variation they choose. Where ownership is not equal this would normally be recorded in a Declaration of Trust.

If no Declaration of Trust has been entered into then the presumption is that the owners own the property equally.

Where a Declaration of Trust is in place, this will normally be conclusive unless evidence can be shown of a later agreement or a very good reason (e.g. fraud) as to why the Declaration of Trust should not be upheld.

Property owned by one person?

It is possible for one person to be the legal owner of a property but for the other person to have an interest in the property. This should be recorded by way of a Declaration of Trust.

However, if there is no Declaration of Trust then there are still circumstances where the ‘non-owner’ may be able to establish an interest in the property but these are highly fact-specific. Typically, this would involve the non-owner making a material contribution to the property on the understanding that they would be acquiring an interest in the property.

What if there are children involved?

If a couple has children together then Schedule 1 of the Children Act allows the court to order that:

  1. One parent (Parent A) pays a sum of money which can be used by the other parent (Parent B) to purchase a property to meet the housing needs of the child.
  2. A property that is already owned by one parent (Parent A) is transferred to the other parent (Parent B) to meet the housing needs of the child.

However, if a sum of money is paid or a property is transferred in this case to Parent B then this would usually revert back to Parent A when the child reaches 18.

Therefore, it does not afford Parent B long term security as the purpose is to provide a home for the child, not the parent. In view of this, it can be quite unattractive for Parent B to pursue this as a standalone claim where they are potentially incurring significant legal costs without actually gaining a capital interest themselves.

In addition to the financial issues that arise when a couple separated where there are children involved, there are often important decisions to make regarding arrangements. We have written a number of blogs on the subject of child arrangements in the event of separation which can be found here.

What if there is a dispute?

As lawyers, we are frequently instructed when things have gone wrong. In these circumstances, it can be difficult to establish what the intentions were at the time and there is often very little documentary evidence.

Litigation is expensive and, where it takes place, the loser will normally be ordered to pay the winner’s costs (or at least a proportion of them).

One of the ways this uncertainty can be avoided is by a cohabiting couple entering into a cohabitation agreement.

This can record things such as:

  • Who owns what?
  • What financial arrangements will be in place whilst the couple are living together to meet utility bills etc
  • How should property and assets be divided if the relationship comes to an end?

In the first instance, if a couple choose to enter into a cohabitation agreement, this means that there will be a discussion over what the arrangements are/will be. This helps both people enter into the relationship with their eyes open.

Thereafter, by recording the agreement it minimises the risk of costly litigation in the event the relationship breaks down.

If you would like to book a consultation to talk to a member of our specialist cohabitation team, please contact us for an informal discussion about your personal circumstance.

7 responses on “Separation rights for cohabiting couples

  1. I have recently terminated my relationship with my partner of 2.5 years. We have been living together for pver 2 years and last year he wanted to buy a car but couldnt afford it alone so I loaned him 50%. He bought a car and I was never put into any of the paperwork. A couple of months ago he unilaterally decided to part exchange it for a newer more expensive car, in this instance i didnt help financially.
    Now that we have brokwn up I am claiming my money back but he says that he owes ne just a fraction of it as the care was part exchanged and depreciated by almost 50%, usuing the excuse that we bought jointly but In my view we didnt as i was never added to paperwork and what I loaned him wouldn’t depreciated. Am i right? What are my options here?

    1. Dear Sofia, thank you for getting in touch. This is not something we can assist with and would suggest that you seek advice from a civil litigation solicitor. Here is the link to the Law Society find a solicitor search which may assist you https://solicitors.lawsociety.org.uk/

  2. I split with my ex partner 10 months ago, we have a 2 year old together. We jointly own a property which I have left but carried on paying the full mortgage ( and still am) and 90% of utility bills, I want to sell, both take what we put in and split the equity accordingly. Appreciate i need to provide for my daughter but currently can not afford to pay maintenance as mortgage is very high – I can not afford to rent anywhere so have gone back to my parents,
    Please advise where I stand regarding selling the property, she can not afford the mortgage on her own or pay the utility bills. I want to provide for my child but the current situation is not sustainable
    Thank you

    1. Thank you for your comment. Unfortunately, we are unable to provide specific advice when replying to blog comments. I would suggest that you seek legal advice from a family lawyer who is a member of Resolution. If we can assist you on a formal basis please do contact us to arrange an appointment.

  3. Hello, I am a father of a 9 month old girl and her mother and I have never cohabited ever. We met and had only started dating when she got pregnant . I have supported her decision from the beginning. I even offered for her to move in part time to my house and spend time between her parents house where she was living, and mine as we developed our relationship, but in fact she moved 45 miles away at 30 weeks pregnant before my daughter was born. We were still “together” and visiting each other’s houses until my daughter was 4 month old. She then told me she did not want to continue a relationship with me. I pay my child maintenance always as CMS have worked out based on both of our incomes. I see and help with my daughter as much as possible, however, as her maternity leave is coming to an end. She is now telling me I should be paying for half of her rent and utilities on her new house for them, even though we were never married and I never lived there. I want to provide for my daughter but I already own my own house and paying for it also from way before she was born. My expenses don’t allow much more than I am currently paying. She threatens me to move further away if I don’t pay. ( I believe this to be an idle threat and attempt to manipulate as her entire family lives in same area as I do) I am lost for help on this matter. I want very much to be involved and a part of my daughter’s life. I am happy to help with extra things she needs when they arise and I know fathers don’t usually have as many rights. 😢 Could you possibly help me understand ? I would have thought CMS would have informed me if I was responsible to pay half of her cost of living also? Many thanks, Tim

    1. Dear Tim, thank you for getting in touch. I am sure this must be a very difficult time for you. Your only obligation is to pay child maintenance which can be assessed via the Child Maintenance Service or you and your former partner could reach your own agreement with regard to this. Whilst there are potential applications that your daughter’s mother could make via the Schedule 1 of the Children Act for more financial/housing support for your daughter the law in this area is very complex – you can read more about this here https://www.familylawpartners.co.uk/blog/financial-rights-for-unmarried-parents and here https://familylawpartners.co.uk/wp-content/uploads/2021/09/Family-Law-Partners-Financial-Arrangements-for-Children.pdf
      With regard to your daughter’s mother’s threat to move away with your daughter, she would need the family court’s permission if you were to object – you may find this article helpful https://www.familylawpartners.co.uk/blog/relocation-relocation-relocation. You may also find this factsheet helpful with regard to arrangements for your daughter generally. https://familylawpartners.co.uk/wp-content/uploads/2021/09/Family-Law-Partners-Arrangements-for-the-children-following-relationship-breakdown.pdf

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