Cohabitation Rights: Your Legal Rights as an Unmarried Partner

Cohabitation rights are in the news as many family law solicitors expected the new Labour government to include a Bill on cohabitation rights in the King’s speech.

There was no announcement although in its manifesto the Labour party pledged to reform cohabitation law with rights for unmarried partners.

Although law reform may be on the cards in future King’s speeches cohabitees will have to wait for change. That’s why in this blog our family law solicitors are looking at the current laws on cohabitation and your options if you are in an unmarried relationship.

For expert family law advice call our team or complete our online enquiry form. 

What are your rights as an unmarried partner?    

Your cohabitation rights as an unmarried partner depend on whether you have children under the age of 18 who are dependent on you. If you don’t have children your cohabitation rights are linked to property and trust laws. If you do have children your rights also include the ability to apply for financial orders under the Children Act 1989 and for child support from the Child Maintenance Service.

Property and trust rights

Property and trust rights can apply to the family home, investment property, a second home or other assets. The property can be owned jointly with your partner, owned by your unmarried partner or by you in your sole name.

The easiest way to sort out a property claim is where there is a jointly owned property and the couple has given thought to whether they own the property as joint tenants or as tenants in common and have signed a deed of trust or cohabitation agreement saying how the equity will be split if they separate.

The hardest cohabitation rights cases to resolve are where the family home is owned by one partner and the other says they have a beneficial interest in the property relying on property or trust law because they did not sign a cohabitation agreement when they moved into the property or when the property was bought in the sole name of their partner.

In property and trust cases the partner claiming a share of the family home needs to show that they have a beneficial interest in the property through promises made by their partner or financial or ‘money’s worth’ contributions. For example, the partner could have paid the mortgage or used an inheritance to pay for an extension to the property or done DIY and put in a new kitchen and bathroom.

In some cases, the owning partner accepts that their unmarried partner has a beneficial or non-legal interest in the family home but they cannot agree on the amount the non-owning partner should be paid to ‘buy off’ their interest or what percentage of the equity they should get when the property is put up for sale when a couple split up. If an agreement cannot be reached through solicitor negotiation or family mediation the court must resolve the cohabitation dispute using property and trust law principles.

Resolving cohabitation disputes  

It can be hard for couples to resolve unmarried partner disputes for several reasons, including:

1. The legal owner of the property does not accept that someone can claim a share of their property as the non-owning partner is not on the title deeds
2. One unmarried partner does not accept that their share of the equity in the family home won’t be worked out using principles of fairness and needs. If you are married the court has wide discretion under the Matrimonial Causes Act 1973 to make a financial court order based on both parties’ needs rather than analysing property and trust law. The family court must adopt the opposite approach in a cohabitation dispute over a family home
3. A cohabitation property dispute often involves looking at historical paperwork to see how much of the mortgage was paid by the claimant or in working out the cost of the extension when many of the trades were paid in cash or invoices have been mislaid
4. One partner may think that they have acquired cohabitation rights as a common law husband or wife because of the length of their relationship. In English law, there is no concept of common law cohabitation rights    

Family law solicitors always recommend a cohabitation agreement so there is less scope for a dispute over cohabitation rights and no need to go to court if you split up from your unmarried partner.

Cohabitation rights if there are dependent children  

If there are dependent children in an unmarried relationship then you may have parenting arrangement disputes as well as financial disputes.

Parenting arrangement disputes include:

• Disputes over which parent the children should live with after the separation 
• Contact arrangements
• Applications for child arrangement orders to sort out residence and contact issues
• Disputes over the exercise of parental responsibility, such as religious observances or choice of school
• International family issues, such as one parent wanting to move overseas with the children and the other parent objecting to the move abroad

Financial disputes include:

• If child support should be paid and the amount. If care is shared neither parent receives child support even if one parent earns more than the other. If child support cannot be agreed an application normally needs to be made to the Child Maintenance Service. The Child Maintenance Service assessment amount will depend on the average overnight stays the children have with the parent they don’t live with   
• Top-up child support through a court order. This is only relevant where the parent paying child support is a high-earner 
• School fee orders to pay for private school fees. The court can order one parent to pay all the fees or a proportion of them
• Requests for lump sum orders to meet the needs of dependent children. For example, if the child is musical and needs a musical instrument 
• Requests for housing for children whilst the children are still at school or university. If the court orders housing to be provided the property does not belong to the child or the parent living in the property with the child. A Schedule 1 Children Act order means the child and parent can live in the property until the child reaches a specified age and the other partner then gets to sell the property or do what they want with it

Cohabitation rights and the death of a partner

If an unmarried partner passes away then their cohabitee is not their legal next of kin. Their children will be or the situation will be more complex if the deceased partner also had children from a prior relationship or is survived by parents or siblings.

Anyone in a cohabiting relationship should have a Lasting Power of Attorney in case they lose the capacity to make their own decisions. They also need a Will to protect their partner. Without a Will, the cohabitee could make a claim under intestacy rules but the process is stressful at a time of bereavement and might involve an estate dispute with step-children or with the cohabitee’s parents or siblings.

You should not assume that a cohabitee will automatically get the family home as this only applies if the property was jointly owned as joint tenants rather than as tenants in common. 

The complexities of cohabitation rights and the death of a partner can be resolved with a bespoke Will and a review of your financial and personal circumstances to check that any pension or insurance nominations are up to date.

Next steps 

If you are in a cohabiting relationship you need to speak to a family solicitor about a cohabitation agreement. You can sign one even if you have already bought a property and are living together. You also need to think about Wills and Lasting Powers of Attorney.

If you are separating from a partner and you are not married it is vital to talk to a family law solicitor about your rights as an unmarried partner so your interests can be protected.

For expert family law advice call our team for an appointment or complete our online enquiry form.