Cohabiting couples do not have the same legal rights as married couples or civil partners. Issues relating to property ownership, financial claims, children, and inheritance can become complex when a relationship ends or following the death of a partner. Understanding your legal position and obtaining early advice is crucial to protecting your interests.
Property Rights of Cohabitants
Many people believe that living together creates a "common law marriage", but this is a common misconception. Cohabitants do not automatically acquire rights to property simply by living together. Property disputes are generally determined under trust law rather than family law.
A cohabitant may have an interest in a property where:
- The property is owned jointly.
- The property is owned by one partner but held on trust for both parties.
- The non-owner has acquired a beneficial interest through contributions, agreements or conduct during the relationship.
Cohabitation Agreements
A cohabitation agreement allows unmarried couples to set out their financial arrangements and intentions during their relationship and in the event of separation. These agreements can provide clarity regarding property ownership, financial contributions, household expenses and arrangements for children. Properly drafted agreements can help reduce the risk of future disputes.
Cohabitant Claims Under TOLATA
Where a dispute arises regarding ownership of a property, a cohabitant may be able to make a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
TOLATA claims commonly arise where:
- One party claims a share in a property owned solely by their former partner.
- There is a dispute about the extent of each party’s ownership interest.
- One party seeks an order for sale of a property.
- There is disagreement over occupation rights or the proceeds of a sale.
To establish a beneficial interest in a property owned by another person, it may be necessary to show financial contributions towards the purchase, a common intention that ownership would be shared, or reliance on promises or representations made during the relationship.
Resolving Property Disputes
Before commencing court proceedings, parties are encouraged to exchange information and consider alternative methods of resolving disputes, including negotiation and mediation. Early settlement can often reduce costs and avoid lengthy litigation.
If court proceedings become necessary, the court has wide powers under TOLATA to determine ownership interests, regulate the conduct of trustees and, where appropriate, order the sale of a property.
Children and Cohabitation
The legal rights of unmarried parents can differ from those of married parents. Issues such as parental responsibility, child arrangements, financial provision and decisions concerning a child's welfare may require specialist legal advice.
Rights Following the Death of a Partner
Cohabitants do not automatically benefit from the same inheritance rights as spouses or civil partners. However, in certain circumstances it may be possible to bring a claim against a deceased partner's estate where reasonable financial provision has not been made. Eligibility will depend on the circumstances of the relationship and the applicable legal requirements.
Proposed Reform
The Government is currently consulting on proposals to introduce a new legal framework for cohabiting couples in England and Wales. The proposed reforms would, in certain circumstances, allow eligible cohabitants to apply for financial remedies following separation where they have suffered economic disadvantage or where one party has retained a benefit as a result of contributions made during the relationship. If implemented, these changes would represent a significant shift from the current position, where cohabitants generally have no financial claims against one another upon separation other than those relating to property ownership under TOLATA. The proposals remain under consultation and have not yet become law.
How We Can Help
Our team has extensive experience advising clients on their rights as a co-habitee. We can assess the merits of your claim, guide you through the pre-action process, where necessary, pursue court proceedings to recover your losses.