Cohabitation Rights in England & Wales: What Unmarried Couples Must Know Before Separating

In Brief

Unmarried couples are the fastest growing family type in the UK, but the law does not give cohabitants the same legal rights and protections as a husband, wife or civil partner.

When unmarried partners separate, they must negotiate a financial settlement based on trust and property law rather than on fairness or their children's needs.

This comprehensive guide by our Family Law Solicitors explains how cohabitation law works, what rights unmarried partners have, and what happens when a relationship breaks down.

Contact OTS Solicitors.

Common Law Marriage

Common law marriage does not exist as a legal concept in England and Wales. It does not matter how long cohabitants have lived together, as a cohabitant will never be a common law spouse and will never gain automatic legal protections through the talked about but non-legal status of a common law husband or wife.

No Automatic Rights for Cohabitants

A cohabitant has no automatic legal rights during their unmarried relationship or after it ends. What this means is that a cohabitant has no right:

1. To a share in their partner’s property unless the cohabitant can prove legal or equitable ownership.
2. To make a claim on their ex-partner's pension.

3. To receive financial support from their ex-partner.

Property covers the family home, savings, investments, businesses and shares.

While a former cohabitant cannot claim financial support for themselves, they can ask for child support if they have a dependent child who lives with them.

When Does an Unmarried Partner Have the Same Legal Rights as a Spouse?

There are a few occasions when, in cohabitation and unmarried family law, an unmarried ex-partner has the same legal rights and protections as a spouse. They are:

1. Protection from domestic violence.
2. Child support.
3. Parenting arrangements, child custody and contact.

In these three aspects, the law makes no distinction between those who are married, in civil partnerships or unmarried.

Property Rights and Disputes Between Unmarried Couples

Property is the biggest and most complicated area of dispute when unmarried couples separate. The key dispute often centres on the family home. The questions to resolve are:

1. Who owns the family home – the non-owner may claim equitable ownership even though their name is not on the title deeds to the property.
2. Who should stay in the family home – if the family home should be transferred into one ex-partner’s name.
3. Should the family home be sold, and how should the proceeds be split between the ex-partners.

Resolving these questions involves looking at property and trust law rather than considering the housing needs of either ex-partner or their income and outgoings.

The Family Home, Property Ownership and Cohabitants

There are normally three family home ownership scenarios with separating cohabitants:

1. Joint ownership as joint tenants.
2. Joint ownership as tenants in common.
3. Sole legal ownership by one partner.

A Family Law Solicitor will first check with the Land Registry to determine whether a property is owned jointly as joint tenants or as tenants in common, and whether there is a declaration of trust or a cohabitation agreement.

Joint tenant ownership means the couple are joint legal owners, normally equally, and if one partner dies, the other partner automatically inherits unless the joint tenancy is severed.

Tenants in common means the couple are joint legal owners, but their shares may be unequal (e.g., 70/30). If one partner dies, their share of the property passes by their Will if they have made one. If they do not have a Will, their share in the property passes under intestacy rules.

Sole ownership means one cohabitant's name is on the title deeds and mortgage, but the other cohabitant may still be able to claim that they have an equitable or beneficial interest in the property under trust law.

Proving Beneficial Ownership as a Cohabitant

If one half of an unmarried couple is the sole legal owner of the family home, the starting point is that they own the house, are entitled to live in it (unless there is a temporary occupation injunction order), and can sell the property and retain all the equity.

However, the non‑owning partner may be able to claim a beneficial interest in the family home or other property if they can prove:

1. They contributed financially to the property, or
2. There was an agreement that they would have a share of the property, and they relied on that agreement to their detriment.

Financial contributions can be made in several ways:

1. Paying the deposit or part of it.
2. Paying the stamp duty.
3. Paying the mortgage or contributing toward it.
4. Paying for house renovations.
5. Paying off all or part of the mortgage. For example, after an inheritance or lottery win.

Agreements and acting to a cohabitant's detriment can be evidenced in several ways:

1. Verbal or written agreements.
2. Cohabitation agreements.
3. Giving up a secure rental property.

Evidencing ownership shares or proving an equitable interest in a property always depends on reviewing historical agreements and paperwork. It is essential to review the evidence that a cohabitant has at an early stage to assess the prospects of bringing a court claim.

The Trusts of Land and Appointment of Trustees Act 1996

Disputes over property ownership or its extent are resolved by agreement or by one ex-partner making a property claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

TOLATA claims are both legally and evidentially complicated because:

1. The claimant has to rely on property and trust law, and the court outcome depends on the provable facts and the judge’s findings.
2. In a long relationship where a property was purchased years earlier, it can be hard to prove financial contributions (such as intermittent mortgage payments or paying a plumber for a bathroom refit) or to show there was an agreement that if the couple split up, the house proceeds would be split 50/50 or 60/40.

TOLATA Claims

Unlike in matrimonial law, the judge in a TOLATA court claim cannot exercise discretion and base their decision on the principles of need and fairness. This can result in difficult and harsh decisions, leaving:

1. A non-owning cohabitant with no share in the equity in the family home because they made no financial contribution and had no agreement with their ex-partner despite their 20 plus year relationship, or
2. A joint tenant entitled to half the equity in the family home even though their cohabitant paid the £100,000 house deposit, and the unmarried relationship and property ownership only lasted two years.

Housing and Property Occupation When Cohabitants Have Dependent Children

If unmarried parents with dependent children are splitting up, they can bring a claim on behalf of their child and/or a property claim under TOLATA legislation.

Schedule 1 of the Children Act 1989 allows a parent to apply for:

1. Housing provision for their child.
2. A lump sum to meet their child’s needs for specific items.
3. Top up child support if the Child Maintenance Service has made a maximum child support assessment.

A housing provision claim under the Children Act does not confer property ownership on either the child or the parent making the Schedule One claim on behalf of the child. Instead, a successful claim means the other parent has to provide housing for the child until a specified age, such as 18 or 21. When the child reaches the specified age, the property reverts to the ex-cohabitant who provided it.

Lump sum applications under Schedule One also need to be child-related rather than for the benefit of a parent claimant. For example, funding for furniture for an unfurnished property that the child will be living in.

 Child Maintenance if a Cohabitating Relationship Breaks Down

The calculation of child maintenance is the same, whether parents are married, in a civil partnership or unmarried. However, married parents and former civil partners can also apply for spousal maintenance.

The Child Maintenance Service normally decides child support. In limited situations, a parent can apply to the family court for extra child maintenance to:

1. Pay school fees.
2. Pay for additional expenses associated with a child’s disability.
3. Pay top-up child support where the Child Maintenance Service has assessed a high-earning parent as being liable to pay the maximum amount under their scheme.

One key point is that child support is not payable under Child Maintenance Service rules if parents co-parent and share care equally. That rule applies even where there is a large income gap between the two parents.

When calculating the amount of child maintenance payable, the Child Maintenance Service looks at:

1. The gross weekly income of the paying parent.
2. The number of children they are paying child support for.
3. The number of overnight stays they have with the children per year.
4. Whether there are additional dependent children in the parents’ household, such as stepchildren.

Child maintenance is not linked to:

1. Whether the parent primarily caring for the child agrees to the parent paying child support having the child contact they want with their child.
2. The income or the outgoings of the parent receiving the child maintenance.
3. The housing or other circumstances of the parent receiving the child support.

The child maintenance rules can produce very different outcomes:

• Two parents, both on £150,000 a year with care split 60/40. A parent who looks after the child 60% of the time can claim child maintenance through the Child Maintenance Service.
• Two parents, one on £150,000 a year and one on £30,000 a year with care split 50/50. Neither parent can claim child support despite the £120,000 income disparity.

Parenting Arrangements When Unmarried Couples Separate

When unmarried parents separate, the law is the same as for married parents. It focuses on the parenting arrangements that are in a child's best interests rather than the parents' relationship status.

If parents cannot agree on how much parenting time they should each have, they can:

1. Negotiate with one another.
2. Ask a Family Law Solicitor to negotiate parenting time.
3. Got to family mediation.
4. Ask the family court to make a child arrangement order.

Child Arrangement Order Applications

When a Family Lawyer advises a parent or the court makes a child arrangement order, the judge will  consider factors such as:

1. The child’s wishes (depending on the child’s age and level of maturity)
2. The child’s emotional, educational, and physical needs
3. The impact of change on the child.
4. Each parent’s ability to meet the child’s needs.
5. Any concerns about either parent's ability to meet their child's physical, emotional and educational needs.

Legal Protection for Cohabitating Couples

Most cohabitating couples have potential rights and claims, but the only way to resolve a cohabitation dispute is either reaching a compromise or hoping a family law judge will side with your interpretation of property ownership rights and trust law.

A cohabitation agreement protects both parties in a relationship as it:

1. Records whether a non-owning partner has a beneficial interest in property and the amount, or
2. States how additional financial contributions affect property ownership when one partner makes extra contributions, such as paying off the mortgage after receiving an inheritance, or
3. Specifies that a cohabitant will not gain an equitable interest in their partner's property unless the couple change their cohabitation agreement to record the property interest. This is to prevent one partner from making a spurious claim.

The Contents of a Cohabitation Agreement

A cohabitation agreement will normally record:

1. Property ownership – such as the family home or other property.
2. How bills and outgoings will be shared.
3. What happens to the family home if there is a separation.
4. How debts will be divided.
5. How personal belongings will be split.
6. The arrangements for the children.

Talk to Cohabitation and Unmarried Family Law Solicitors in London

Around 17% of people are in unmarried relationships, and cohabitants are vulnerable if they don’t:

1. Take family law advice before moving in with a partner.
2. Protect themselves with a declaration of trust when buying a property together.
3. Sign a cohabitation agreement before living together.
4. Take legal advice before agreeing to their cohabitant owning assets in their sole name or their agreeing to take out loans or debt in their sole name.
5. Check out whether they have equitable rights in the property because they make an assumption, as their name is not on the title deeds to the property.

Whether you are starting or ending an unmarried relationship, you need expert family law advice from solicitors you can trust.

Our Cohabitation and Unmarried Family Solicitors in London have expertise in:

1. Negotiating cohabitation agreements.
2. Advising on cohabitation rights and TOLATA claims.
3. Schedule One Children Act claims for housing provision.
4. Child arrangement order applications.

Contact OTS Solicitors in London.  

 Frequently Asked Questions on Cohabitation and Splitting up

What is the definition of a common law marriage?

In England and Wales, the legal concept of common law marriage does not exist. Living together, no matter how long, does not make you a husband or wife in common law. Your rights as a cohabitant are defined by law and can be set out in a cohabitation agreement.

Will the court order the sale of the family home?

Whether the court will order the sale of the family home depends on what was agreed in your cohabitation agreement.

If you didn’t sign a cohabitation agreement, whether the court will order a sale and the timing of it will depend on whether you are a joint owner, sole owner, or alleging a beneficial interest and bringing a TOLATA claim. If you have a dependent child, you could also ask the court to allow you to remain in the property until your child is 18 or 21 by making a Schedule One Children Act claim.

 Can I claim financial support from my ex‑partner after we split?

A cohabitant cannot claim maintenance for themselves, but you may be able to claim child support if you have a dependent child by making an application to the Child Maintenance Service. You may also be able to bring a Schedule One Children Act claim for housing provision, lump sum payment and top-up child support.

How can I protect my deposit if I buy a house with my partner?

You can protect your deposit if you jointly buy a house with your partner by signing a declaration of trust and a cohabitation agreement. These documents will say what happens to the property if you split up and how your deposit will be protected.

How can I make sure the children live with me if I separate from my partner?

Parents are encouraged to agree on parenting arrangements for their children when they end a married or cohabiting relationship. If parents cannot agree on where the children will live and how much time they will spend with each parent, either parent can ask the court to make a child arrangement order. The court will assess which proposed parenting arrangement best meets your child's welfare needs. The court’s priority is always your child’s welfare.

Contact OTS Solicitors in London.