COHABITATION, What's your right?
Many couples mistakenly believe that living together or cohabiting for a long time gives them the same legal rights as married couples, but this is not true. In reality, unmarried cohabiting couples do not share the same legal protections, especially regarding financial support after a breakup which leads to significant financial challenges, particularly for those who have equally contributed and invested in the relationship. Family lawyers specifically in England and Wales have long pushed for changes to offer cohabiting couples similar rights to those of married couples, but the law has not yet caught up.
In August 2022, the Women and Equalities Committee published a report with several recommendations aimed at better protecting cohabiting couples and their children financially upon separation. These proposals seek to offer more security while still respecting the unique social and religious status of marriage. Some progress has been made, such as extending cohabitees' rights to bereavement support payments and widowed parent’s allowance, allowing bereaved cohabitees with dependent children to access financial aid. However, in November 2022, the Government confirmed it would not reform cohabitation laws until after addressing changes to marriage and divorce laws, making it crucial for cohabiting couples to seek legal advice in the meantime.
When married couples divorce, family courts step in to ensure fairness, dividing assets and meeting the needs of both parties and any children involved. However, this approach does not apply to cohabiting couples. Instead, their situation is governed by civil law, based on older land laws such as the (TLATA) Trusts of Land and Appointment of Trustees Act 1996 which barely offers protections for cohabiting partners. The most valuable asset for cohabiting couples is often the home they share. If a dispute arises over property ownership when they separate, the Trusts of Land and Appointment of Trustees Act is used to decide the matter. Without a formal agreement, the assumption is that the property will be divided according to how it was initially registered. However, if one party can provide evidence showing a different intention, this presumption can be challenged.
Things can become even more complicated when one partner moves out before the property is sold. Payments made toward the mortgage or rent during this time could lead to what’s called an "equitable account," potentially impacting how the final proceeds from the sale are divided.
Many lawyers today suggest a Cohabitation Agreement. An agreement of this kind can enable you, as a couple, to decide how you will manage your financial relationship while you are together, but as importantly, to consider and make provisions for what would happen if the relationship were to break down. Discussing these issues in advance can reduce the risk of disputes over financial matters in the future, and thereby lower the chances of the relationship itself breaking down. If separation does occur, an agreement can make the process smoother, less stressful, and far less expensive for both parties. Having a cohabitation agreement or a declaration of trust can prevent many legal headaches down the road by clearly stating how the property should be divided. These agreements are often overlooked but can save significant legal costs if a dispute occurs. If a mutual agreement is not possible, mediation or arbitration can offer a more affordable alternative to going to court.
Taking the matter to court should be a last resort. It is not only the most expensive option but also carries the risk of the losing party being ordered to pay legal costs. Proving that property ownership differs from what is recorded is also challenging in court. If you are unsure of your legal position when moving into a property with your partner or during the breakdown of your relationship, it is wise to seek legal advice early.
It is crucial that unmarried couples understand they have limited protection when they separate, especially the financially weaker partner. Their claims are generally restricted to property and do not extend to other assets like bank accounts. Many family lawyers are advocating for changes to the law to provide more protection, particularly as the number of unmarried couples continues to grow. However, the law still has a long way to go before it offers these families the security they need.
