The law relating to cohabiting couples
The law relating to cohabiting couples
For couples in a cohabiting relationship there is no equivalent process to getting divorced or ending a civil partnership. Contrary to popular belief there is no such thing as a “common law marriage”. Cohabiting with someone does not entitle you to the same legal rights as a couple who are married or in a civil partnership. You can live with your partner for many years and still have no rights over a family home that is in your partner’s sole name. Cohabitant’s rights are patchy and complex and in the event of a dispute the law can be uncertain and difficult to apply.Contact us
At Branch Austin McCormick, we strive to make the complex clear. We will break down the legal principles that apply to your case into language that you can understand. We will endeavour to reach a resolution to your case by negotiation. However, if those negotiations break down, we will deal with your court application proactively and always undertake a cost against benefit exercise. Cohabitation cases can be expensive to run so you will want to be confident that your approach in any court proceedings is worth the expense and the risk involved in taking your case to court.
Our family law partner Saika Alam is a qualified Collaborative Family Law lawyer which means that in the right circumstances she can assist you in reaching a negotiated settlement outside the court process. Saika is also accredited by the Law Society and is on the Advanced Family Law panel.
Take advantage of our free telephone enquiry to find out how we can support you through the minefield of ending a cohabiting relationship.
What are your options if you are planning to move in with your partner?
It is important to ensure that your rights are protected if you are planning to live with your partner, particularly if you intend to buy a home together. If you are planning to buy a home with your partner, you may enter into a cohabitation agreement or have a deed of trust drawn up (or have both).
The circumstances in which you might want to have a cohabitation agreement, or a trust deed are as follows:
- You will both be contributing different shares to the purchase of your home and you want to be clear on what share in your home each of you will hold
- You have children from a previous relationship or are planning to have more children
- You want to agree in advance who will pay for certain debts or bills
- You want to protect loans or gifts from the bank of “mum and dad”.
What if your relationship with your cohabitee has broken down and you do not have any formal agreement with him or her in place?
Although some legal remedies are not available to you, such as pension sharing or maintenance for yourself (rather than maintenance for any children), you may still be able to make a claim on a shared home even if you do not jointly owned it with your former partner. In the alternative you may be able to make a claim for a greater share in a jointly owned home if your contribution to that property was greater than your partner’s contribution.
If you have children, you may be able to “borrow” your partner’s share in a home (whether owned jointly or in your partner’s name only) for as long as the children are dependent. This is commonly known as a “Schedule 1 claim” as it is made under Schedule 1 of the Children Act 1989. In some cases, you can ask the court for a lump sum on top of a housing allowance so that you can refurbish a home to an acceptable standard that matches the standard of living of your former partner.
If you have children then it may also be possible for you to apply to the court for a “top up” on any child maintenance payment your partner is paying to you as a result of a maximum income assessment by the Child Maintenance Service. You would need to show that you have specific expenses for the children to pay that cannot be covered by the child maintenance that you receive for them.
Examples of our experience
Representing a professional footballer in a Schedule 1 claim brought against him by his former partner in which she was seeking housing provision for their son substantially above what was reasonable, taking account of our client’s income and capital. Obtaining a court order and setting up a trust for the child that protected our client’s capital. That capital had to be paid back to the client when the child attained the age of 18 or completed full time education.
Representing a mother in very protracted proceedings where the father represented himself. He had refused to take legal advice, had refused to acknowledge the mother’s share in their home and had refused to put the property on the market for sale. Obtaining a court order for the sale of the property with a direction that half of the sale proceeds be paid to the mother. In addition, obtaining an order allowing the mother to keep a proportion of the father’s share of the sale proceeds to invest in a new home for herself and their children until the last of the children attained the age of 18 or completed full time secondary education.