Cohabitation

27-05-2022


What is cohabitation?

Cohabitation is two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners.

What is a cohabitation contract/ agreement?

A cohabitation agreement can stipulate rights and responsibilities during the cohabitation and in the event that the relationship should breakdown. For example, terms can relate to finances, property, children etc. The agreement can be entered into before you start living together or any time during the cohabitation, for example you may wish to consider this before a property purchase or before having a child. Our Family Law solicitors can help in drawing up an enforceable Cohabitation Agreement. It’s worth bearing in mind that the costs of a Cohabitation Agreement will be negligible compared to the costs of lengthy court case.

What are your rights if the relationship breaks down?

You’re rights as cohabitees will be limited compared to those that are married. For example:

Cohabitees do not have the right to seek or obligation to provide financial assistance for the other cohabitee (although in certain circumstances, it may be possible to make a claim against the other cohabitee’s estate after their death).

Cohabitees do not receive the tax benefits that married couples do such as tax exempt gifts and transfers to spouses.

If you have a child, the father won’t automatically have parental responsibility for the child unless

– named on the birth certificate

– by parental responsibility agreement

– by court order.

If the relationship has broken down, either parent can still apply for a child maintenance calculation through the Child Maintenance Service.

You may also be able to make a claim under Schedule 1 of the Children Act 1989 for financial provision for the benefit of the child. This can be for maintenance and/or for capital. The court’s powers are however limited so we would suggest you speak to our Family Team about the merits of making such a claim.

If renting a property jointly, both are jointly liable for the rent. So if the relationship breaks down there is no automatic right to have the tenancy transferred to the other. The parties would instead need to speak to the landlord or managing agent.

If the property is owned then the rights to property will be governed by the complicated law relating to trusts rather than other family law principles of needs and sharing. Rights will differ depending on whether the property is owned by one party or both and depending on whether it is held as joint tenants or tenants in in common. Broadly speaking, the position is as follows:

So before entering into a property purchase, we would suggest you consult with our Conveyancing team to help draft a declaration of trust setting out your shares. You should also consider consulting with our Inheritance Protection team to help draft a Will.

If the property is held in just one cohabitee’s name, the other usually won’t have a right to it on relationship breakdown. There are limited circumstances where you may be able to claim that you do have a share in the property or have a greater share than that recorded at Land Registry (or on a trust deed). Such claims are on the basis of:

  1. financial contributions and a common intention that the property will be held in proportion to the contributions;
  2. a common intention that there should be a beneficial interest and one party has acted to their detriment on this basis;
  3. having been led to believe that you have a beneficial interest and you have acted to your detriment and it is unreasonable for the other owner to suggest otherwise.

Note however that these claims are generally quite expensive and difficult to prove. If you need to look into this we would suggest you contact Madia Aslam here or one of our specialist Family team members below for more advice.


Madia Aslam

Solicitor
Family Law

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