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FAQs - cohabitation agreements

Do cohabiting couples have the same rights as married people?

Common law marriage is a myth. It does not matter how long two people have lived together as a couple - unless they marry or enter into a civil partnership, they do not have the same financial claims as a married couple or civil partners.

What happens to the house if we separate?

This will depend on whether the property is jointly owned or owned by one party.

If the property is jointly owned, then it is assumed each owner has an equal interest in it unless there is a declaration of trust defining each person’s interest in the property.

If the property is owned in the sole name of one party, then they will retain the legal ownership of the property on separation. The other party may have a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). This is a civil (as opposed to family) remedy and enables the court to decide who has a beneficial interest in a property and what the extent of that interest is. The non-legal owner is required to prove that they have an equitable (beneficial) interest in the home. In order to do this, they must evidence, on the balance of probabilities, that there was an agreement / common intention that they would be entitled to a share of the property. This can be as simple as providing evidence that an ancillary declaration of trust was entered into at the time of the purchase (this will be clear from the conveyancing file). However, it more often means looking back to when the property was purchased; what the discussions were at the time of purchase; whether there is any written evidence of the parties’ intentions either then or at a later date; what financial contributions have been made that support the claimant’s claim that it was intended that they should benefit; whether one party relied on what the other said and so on.

TOLATA claims are complex, often very expensive and require expert advice from the outset. 

How will joint savings and bank accounts be divided?

If the account is in joint names, then both parties have an equal claim to it. It is therefore important to be alert to the fact that usually one party can withdraw or transfer funds without the other’s consent.

Will my personal assets be protected?

Assets in your sole name remain yours. Unmarried cohabitants do not have the full menu of financial claims which are available to married couples. Therefore there is no available claim against personal assets (eg cash savings) held in the name of a partner.

What happens to my pension?

Unmarried partners have no claim to their partner’s pension on cohabitation or separation other than in very exceptional circumstances. It is, however, possible for one party to name a cohabitant as a recipient of a death in service benefit.

How can I look after my children’s financial interests?

There are specific claims available to unmarried cohabitants with children. These are known as ‘Schedule 1’ claims because they are set out in Schedule 1 of the Children Act 1989. This provision allows one party to make financial claims against the other for the benefit of the children. While the available claims are not as wide as those on offer to married couples, they do enable applications for a lump sum payment for the benefit of the child as well as a transfer of property to ensure the child or children are housed for (and only for) their minority (until 18 / concluding secondary education). In addition to this, unmarried couples can make an application for child maintenance to Child Maintenance Options for ongoing maintenance.

It is common for former cohabitants with children to make a claim under TOLATA as well as Schedule 1. 

As unmarried parents, will we both automatically have parental responsibility following the birth of our child?

The mother will automatically have parental responsibility for her child. In order for an unmarried father to obtain parental responsibility, he must either marry the mother, be named on the birth certificate when the birth is registered, or enter into a parental responsibility agreement with the mother. It is also possible to apply to the court for parental responsibility if the mother does not consent to a parental responsibility agreement.

Can my partner, who owns our house, make me leave the property?

It does not matter whether or not you own the home, you may still seek an occupation order excluding your partner from the property. It is essential to seek legal advice if you are experiencing domestic violence; the family courts are able to offer protection on an urgent basis.

What is a cohabitation agreement?

This is an agreement entered into by the cohabitants that sets out their intentions in relation to property and any other assets they own either jointly or individually and what should happen if the relationship breaks down. Cohabitation agreements are legally binding contracts, provided that they are drafted and executed properly, and are signed as a deed. It is therefore essential to obtain legal advice before preparing an agreement.

When should I draw up a cohabitation agreement?

At any time either before you move in with a partner or when you have been living together for many years. The agreement should be reviewed periodically, particularly where there has been a significant change in circumstances, for example the birth of a child.

What happens to our cohabitation agreement if we decide to marry?

You can either revise the agreement to reflect what you would wish to happen in the event that the marriage breaks down, or allow the agreement to end. You may wish to consider a pre-nuptial agreement as an alternative.

Are things set to change for cohabitees?

At the time of writing, the Cohabitation Rights Bill is yet to receive its second reading in the House of Lords. The Bill aims to provide certainty for cohabitees, both on separation and death, and to rectify the common situation where one party is left at a significant disadvantage following separation. The Bill would, in its current format, bring cohabitees’ financial rights and claims closer to those afforded to married couples and civil partners.

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