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What are the rights of cohabiting couples?

Contrary to popular belief, there is no such thing as a ‘common law marriage’ in England and Wales. Cohabiting couples do not have the same legal protections as married couples, and this can have serious implications for people who separate after a long period of time living together, particularly when they have children or own property together or in one party’s sole name.

When a married couple divorce, if parties cannot agree the finances between themselves, there is significant legal protection available within the family court system. A judge can step in and apply principles of ‘equality’ and ‘fairness’ and ‘sharing’, and more often than not, prioritise meeting the parties’ ‘needs’ as well as those of their children. Family judges in England and Wales have wide discretion when it comes to deciding how assets can be divided upon divorce.

The position is very different for cohabiting couples. The relevant law is ‘civil law’ rather than family law. The law in this area is much more archaic, and the principle of ‘fairness’ does not apply.

Finances of cohabiting couples

The law for unmarried couples is very limited in its remit. Claims are likely to be limited to property and child maintenance. Unmarried couples do not have the ability to make claims against the other’s pensions or any savings and investments held in one person’s sole name. It is also not possible to make a claim for maintenance payments against the other party, save in relation to child maintenance.

Cohabiting Couples Property Rights

The main asset for a cohabiting couple is usually the home they share. Where there is a dispute as to the ownership of the property, and therefore the division of the net proceeds of sale, parties will look to the Trusts of Land and Appointment of Trustees Act 1996. In a ‘TOLATA’ case, the presumption is that the property is held in the way it is recorded at the Land Registry. A party would need to provide evidence that this is not how they intended to hold the property if they wished to contest it.

Children of cohabiting couples

Most unmarried parents seeking financial provision for their children are likely to turn to the statutory Child Maintenance Service (“CMS”). The CMS has jurisdiction for all maintenance cases where the paying parent earns less than £156,000 gross per annum.

In some cases, it is possible for the parent with care of the children to make an application to the court under Schedule 1 of the Children Act 1989 for further financial provision for the benefit of the child.

Rayden Solicitors are family law specialists who can assist in relation to all aspects of family law, including unmarried couples and cohabitation agreements. If you require legal advice about any of the issues raised in this blog, please do not hesitate to contact us.

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