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The scope of family relations has changed in recent years, and marriage rates have fallen to their lowest on record. Cohabitation has become increasingly popular, where unmarried couples choose to live together without formalising their relationship via marriage.

Despite the increasing popularity of cohabitation, cohabiting couples can face legal obstacles in relation to their parental or property rights, especially on separation. It is important for couples to understand that cohabitation does not automatically create the same legal rights as marriage. As a result, they are not entitled to the same legal rights and protections on separation as married couples.

Parental Rights

When it comes to parental rights, the law in England and Wales recognises parental responsibility, which is not automatically granted to unmarried fathers. The Children Act 1989, plays a pivotal role in establishing the rights and responsibilities of parents, regardless of their marital status.

Section 2 of the Act outlines that a father automatically acquires parental responsibility if he is married to the child’s mother at the time of birth. For unmarried fathers, acquiring parental responsibility involves being named on the child’s birth certificate (NB this only applies to children born after 1 December 2003) or obtaining a parental responsibility agreement or order from the court.

Parental responsibility provides both parents, whether married or not, with the right to make decisions or be consulted in relation to significant issues regarding a child’s welfare such as education and medical treatment.

The courts will prioritise the best interests of the child when determining issues such as living arrangements and other important aspects of the child’s life. These issues include a change of name, the need for any medical intervention and their education.

The Child Maintenance Service, and in some cases the family court, also has jurisdiction to deal with child maintenance regardless of whether or not the child’s parents are married.

Property Rights

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) is a crucial piece of legislation that addresses property disputes between cohabiting couples. TOLATA allows individuals who have a beneficial interest in a property to seek redress in court if a dispute arises. The Act recognises both express and implied trusts and provides a framework for the court to determine the extent of each party’s interest in the property.

In the case of Stack v Dowden [2007] UKHL 17, the House of Lords clarified the principles underpinning TOLATA in the context of cohabiting couples. The court emphasised the need to consider the common intention of the parties regarding their respective shares in the property.

Furthermore, in the case of Jones v Kernott [2011] UKSC 53, the court expanded that in the absence of a clear agreement or intention between cohabiting partners, the court shall consider the parties’ conduct, and financial contributions when determining property rights. Factors such as financial contributions, intentions regarding property ownership, and the welfare of any children are taken into account when determining the fair distribution of property rights.

The law in this area is technical and complex, and cohabiting couples are best placed to take legal advice when purchasing a property or moving in together.

Protections for Cohabiting Couples

Cohabiting couples do not benefit from the same legal protections as married couples. Cohabiting partners may find themselves in vulnerable positions during disputes or separations especially where they have not recorded their intentions in any written legal agreement.

To mitigate the risks associated with cohabitation and in the event of a separation, couples can take proactive measures by entering into cohabitation agreements. These documents allow partners to outline their respective rights and responsibilities, including financial arrangements, property ownership and division, and child arrangements. These agreements provide a degree of certainty and can help prevent disputes by clearly defining the intentions of both parties.

Additionally, couples should consider entering into a deed of trust or making wills to ensure that their wishes are respected even in the event of death. Without a will, the surviving partner may also face legal challenges in securing inheritance and financial provision.

Current Legal Landscape

As awareness of the legal challenges faced by cohabiting couples grows, there is a growing call for legislative reform to provide greater protection. The Cohabitation Rights Bill, which has been proposed in various forms over the years, aims to address some of the gaps in the current legal framework.

The proposed bill seeks to provide cohabiting couples with legal recognition and rights akin to those of married couples. This includes provisions for financial settlements, property rights, and maintenance obligations. While the bill has not yet become law, its consideration by lawmakers signals a recognition of the need to modernize family law to reflect contemporary relationship dynamics.

However, in the absence of a formalised marriage, the legal rights of cohabiting couples continue to be primarily governed by specific legislations and case law. While existing legislation and case law provide some safeguards, the lack of automatic legal recognition for cohabiting couples remains a significant challenge.

Legal Advice

It is important for individuals in cohabiting relationships to be aware of their legal standing and to consider proactive measures to protect their rights and interests. At Rayden Solicitors, we can provide tailored legal advice from experienced family law solicitors.

If you require legal advice, please do not hesitate to get in touch with one of our specialist solicitors.

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If you require assistance with any aspect of Family Law, please contact us on 01727 734260.

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