Why a cohabitation agreement is essential for non-married couples

2nd December ‘20

Family structure is changing

According to the Office for National Statistics, cohabiting couples have been the fastest growing family type over the last decade now accounting for 19.3% of families – an increase of over a quarter over the last decade. In 2019 there were 3.5m cohabiting families, up from 1.5m in 1996.

Is cohabitation legally recognised as a family structure?

A popular urban myth in England and Wales is that common law marriage exists after a couple have lived together for a period of time.  This is not the case – parties are either married or not and couples that simply live together are treated the same as normal flatmates in nearly all circumstances.

Furthermore, to compound matters, the Government in its language around family structure, its data collection and in its policy mechanisms, largely fails to distinguish between married and cohabiting couples. There’s no doubt that this attitude has influenced popular culture and led to the widespread belief that cohabitees and married couples experience the same kind of relationship in terms of financial rights and legal protection.

Do cohabiting couples have rights?

If you are an unmarried, cohabiting couple, or are not civil partners, you do not automatically gain the same financial rights and support as a married couple/civil partners.

This is regardless of the length of your relationship or whether you have children. In fact, the way the law approaches the financial needs of children of unmarried couples also differs.

What happens to cohabiting couples with children?

When a married couple separates, the financial matters arising from their marriage are resolved through the court with one of the key considerations being the welfare of any minor children of the family. This often leads to a settlement or order which considers and provides for the needs of the children as well as those of the parents.

In some circumstances a resident parent, with care of a child or children may be able to argue a claim against the other parent under Schedule 1 Children Act 1989. This provision allows a parent to make a claim to meet the financial needs of a dependent child, but the claims are far more limited in scope and support than those available to a parent in the same circumstances who is married.

A variety of orders can be applied for under this schedule, which include (but are not limited to):

  • providing housing for the children to live;
  • paying school fees or educational expenses;
  • paying expenses associated with a child’s disability; and
  • providing funding to pay for items the children need

In terms of housing, the court can decide that the resident parent can remain in the family home, even if the other parent had full ownership of the property.

When deciding whether to make an order under Schedule 1 of the Children Act 1989, the court will review a number of considerations including the financial needs of the child and the financial needs, resources and circumstances of both of the parents.

Cohabitation and maintenance

Unlike a married couple or civil partners, you are not entitled to claim maintenance for yourself from your former cohabitee if you separate.

In terms of child maintenance, there is no fundamental difference between married and unmarried person on separation. Whether you’re married, civil partners or cohabitees, if you separate from the other parent and the children remain living with you, or care is shared but the children spend more nights with you than the other parent over the course of the year, the other parent is obliged to pay maintenance towards the upkeep of your children.

Do cohabiting couples have equal property rights?

As a cohabitee, unless in joint names, you have no guaranteed rights to ownership of each other’s property if you decide to separate or upon the death of one partner.

If your relationship breaks down and you are unable to agree on the share you should both have, the case can be taken to court to determine each of your interests in the property. Any dispute as to how property should be divided is dealt with under Trusts law which simply considers the contributions, intention and agreements between the parties and not their needs or the needs of any dependent children.

Cohabitation agreements – protecting your future

For many couples, the last thing that comes to mind when moving in together is what will happen if that relationship ends. However, property disputes between unmarried couples can be a long and costly affair, and if property is in your partner’s sole name, a breakdown in your relationship can leave you homeless, with little notice.

It is for this reason that we advise considering these issues at the outset in order to avoid any future potential disputes. If you are already living together it is still possible to draft an agreement also We can help you to protect yourself as a cohabitee by drafting up a legally binding cohabitation agreement which can set out your intentions if you separate, as well as the arrangements for your children.

If you would like to speak to someone in more detail regarding a cohabitation agreement, or get advice on your circumstances and legal rights, please contact Ben Castle, Senior Associate at Calibrate Law.

This post is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice.


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