Cohabitation Rights

It is common for couples to live together and often start a family without getting married or entering a civil partnership. However, cohabiting couples need to be aware of their limited legal rights in the event of relationship breakdown. Despite the popular myth, the term ‘common law marriage’ carries no legal weight.

A cohabiting couple’s rights around children, property and finances can be very limited. For instance, if a couple splits up, any property is generally divided according to ownership (regardless of non-financial or financial contributions by the other person.) There is no right to share a pension or to claim maintenance beyond financial support for children. This can place the financially poorer party into financial hardship even after a relationship lasting many years. If a cohabitee dies without a will, their assets go to their next of kin in a strict order of precedence and cohabitees are not ‘next of kin’.

Can cohabiting couples protect themselves?

Cohabitation agreements are becoming more commonplace. Although they are not legally binding, providing they have been properly (and fairly) drafted and there is evidence that both parties have taken objective legal advice, most courts will take them into account. This makes potential disputes much easier to resolve if claims are brought against property.

Agreements would be sensible to focus on property and savings to which both parties have contributed and how these would be divided if the relationship broke down. This may include the completion of declarations of trust to define the shares legally. Cohabitation agreements can also cover the need to make a will to ensure that each is provided for on the death of the other from their estate and to avoid court disputes.

Until the law changes, cohabiting couples can control their finances by taking direct responsibility through a formal agreement.

Please contact our family team to discuss the next steps if you would like more information on cohabitation agreements.