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Cohabitation rights series: Navigating the end of a cohabiting relationship by Ruby Jordan

Cohabiting couples are the fastest-growing family type in the UK, yet they remain among the least protected under current family law. This first part of the family department’s cohabitation rights series outlines the legal realities facing cohabitants at the end of a relationship and the steps they can take to protect their interests.

What constitutes a cohabiting couple?

Under Section 62(1)(a) of the Family Law Act 1996, cohabitants are defined as two persons who are neither married to each other nor in a civil partnership but are living together as if they were. In 2021, there were approximately 3.6 million cohabiting couples in the UK, a 144% increase since 1996 according to the Office for National Statistics (2022).

Legal position on separation

Cohabiting couples do not enjoy the same legal rights as married couples. The concept of ‘common law marriage’ is a myth, albeit an enduring one, and offers no legal protection on separation. As a result, cohabitants may face difficulties in securing financial stability and be exposed to long-term financial challenges.

Legal claims available

There are two main legal avenues for separating cohabitants, neither of which arise from the relationship itself but stem from: 1) property ownership; and 2) financial support for children.

Claim for beneficial interest in property under the Trusts of Land and Appointment of Trustees Act 1996 (‘TOLATA 1996’)

A cohabitant who is not a legal owner may claim a beneficial interest in a property by proving one of the following:

1. Express trust

Applies where the legal owner has made a written declaration confirming that the property is held in trust for both parties, specifying the shares in which it is owned.

2. Resulting trust

Applies where the non-legal owner has contributed financially to the purchase of the property. The law presumes that both parties intended to share ownership in proportion to their contributions.

3. Constructive trust

Applies where there was a shared intention that both parties would have an interest in the property, and the non-legal owner acted to their detriment based on that understanding - such as by paying the mortgage or funding renovations.

4. Proprietary estoppel

Applies where the legal owner, through words or conduct, led the non-legal owner to believe they had an interest in the property, and the non-legal owner relied on that belief to their detriment.

Claim for financial support for children under Schedule 1 of the Children Act 1989 (‘CA 1989’)

Unmarried parents may seek financial provision for a child under the age of 18. This route may complement an application for child maintenance to the Child Maintenance Service and provides for a broader range of financial support. The court may order:

1. Periodical payments - including top-up maintenance, school fees, or costs related to a child’s disability;

2. Lump sum payments - to cover specific, one-off expenses; and

3. Transfer or settlement of property - requiring a parent to purchase or transfer property for the child’s benefit, with ownership reverting to the paying parent once the property is no longer required when the child or children reach the age of 18 or finish full-time education.

It is important to note that these claims are made strictly for the benefit of the child, not the parent.

Legal protections available to cohabitants

There are, however, proactive steps that cohabitants can take to protect their interests.

Cohabitants may consider entering into a cohabitation agreement, recording their financial and living arrangements both during cohabitation and on separation. Provided the agreement is properly drawn up, with both sides receiving independent legal advice, then the agreement should be respected by the court as a legally binding contract.

Cohabitants may wish to consider entering into a declaration of trust, for example in circumstances where a jointly owned property is held in unequal shares or where a party is not a registered legal owner.

Cohabitants may consider making a will. Without a will, cohabiting partners are not recognised under intestacy laws, meaning a surviving cohabitant might not inherit anything beyond jointly owned property or named policies. A will ensures that assets are distributed according to cohabitants’ wishes, rather than defaulting to surviving relatives. Cohabitants should be aware that spousal exemption to inheritance tax on the first death will not apply.

Conclusion

While legal mechanisms to protect cohabitants exist, they require foresight and legal advice. As the law stands, cohabitants must take proactive steps to safeguard their rights. Reform may be on the horizon, but until then, preparation is key.

Sinclair Gibson boasts one of London’s leading family law teams, with extensive experience in advising clients on cohabitation matters. If you would like to know more, please contact us and a member of our team will be happy to assist you.