Cohabitation Rights and Separation

A cohabitee is someone who is in a relationship with another person whom they are living with. This includes any unmarried couple from any background, whether they are young, old, same-sex or opposite-sex.

It is becoming more and more common for couples to choose to cohabit, either before or instead of marriage and there is pressure on the government to reform this area of family law.

Currently, cohabiting couples DO NOT have the same rights as married couples upon separation. English family law does not fully recognise cohabitation, regardless of duration, children, shared property, or business ventures.

Financial claims after separation are limited, so it is crucial for unmarried couples to understand their rights and responsibilities before making significant financial decisions.

For those in ‘religious marriages’, it is crucial to determine if English law recognises the union. Recognition depends on factors like location and legal formalities.

If unrecognised, you are considered a cohabitee, not a spouse, lacking the protections and rights of married couples. The law is very clear on this, and it is advised that anyone who has entered into a religious marriage should obtain family law advice as soon as possible to establish their position.

The idea of ‘common-law marriage’ is a misconception with serious consequences if couples separate or one partner dies. Financial matters for unmarried couples are hovered by case law and the Trust of Land and Appointment of Trustees Act 1996 (TOLATA).

Unlike married couples, cohabiting partners have no automatic rights to each other’s property, assets, income or pensions upon separation. Financial claims are mainly limited to jointly owned property and child maintenance. Their rights upon death are also more limited in comparison to married couples.

There is no legal obligation to financially support your partner, during or after the relationship. Couples must manage their finances independently and are encouraged to create a ‘cohabitation agreement’.

If the relationship ends and you don’t own the shared property, your right to stay is limited. You might need a court occupation order for temporary residence, or if you have children, you may need to apply for financial provision for them.

Getting legal advice is recommended as your options will depend on your individual circumstances.

Property rights after separation are complex but depend mainly on legal ownership.

• Joint ownership: If both partners own the property, shares are determined by what’s recorded at the Land Registry, unlike married couples where courts can make ‘fair and reasonable’ decisions regardless of ownership.
• Joint tenants vs tenants in common: Joint tenants own the property equally, while tenants in common have specific shares. This is usually outlined in the title deeds or a declaration of trust, regardless of individual contributions.
• Upon separation: Jointly owned property is often sold or transferred, with equity divided according to respective shares.

Each partner’s individual bank account remains their sole property, even if the other partner has contributed money (common with savings accounts).

• Joint account: Both partners have access, regardless of contributions.
• Upon separation: Money in joint accounts is typically divided equally.

• Pets: Disputes over pets are increasingly common. In England and Wales, pets are considered property and are therefore treated as any other asset in a separation. Courts cannot order shared custody or pet maintenance, so couples must reach their own agreement.
• Important: Avoid using pets as emotional leverage; prioritise the wellbeing of everyone, including children and pets.