In this article, our cohabitation solicitors disuss cohabiting couples seperation rights.
Cohabitation, or living together as an unmarried couple, is becoming increasingly common in the UK. However, many people are unaware of their legal rights and protections when it comes to cohabitation. In this article, we will explore the cohabitation rights, or lack of rights, of cohabiting couples in the UK and how a cohabitation solicitor can create protection with a cohabitation agreement.
If you would prefer to listen to a discussion about cohabitation rights in the UK, family lawyer Vasoulla Constantinou participated in a Podcast in which Cohabitation rights are clearly outlined in a lively discussion. Visit Spotify to listen.
What is Cohabitation?
Cohabitation is defined as two people living together in a romantic relationship without being married or in a civil partnership. This can include same-sex couples as well as opposite-sex couples.
In the UK, there is no legal definition of cohabitation, and there is no such thing as a “common law marriage”. This means that cohabiting couples do not have the same legal rights and protections as married couples or those in civil partnerships.
Rights of Cohabiting Couples – Property and Finance
No legal rights means that if the relationship ends, separating couples do not have the same legal protections in terms of property and finances.
For example, if a cohabiting couple separates, there is no automatic right to a share of the other person’s property or assets, even if they have been living together for many years. This can be particularly problematic if one person has contributed financially to the household but is not named on the property deeds. For example, if one half of the cohabitating couple owns the property in their sole name and the other half pays the mortgage and they separate after numerous years, the person who legally owns the property holds all the rights and the person who has paid the mortgage can be evicted.
These lack of rights extend beyond property. In the event of separation, cohabitees have no rights over property, business assets, saving and investments or pensions. Nor do they have any rights to apply for maintenance payments which can often leave a former cohabitee in a very precarious financial situation.
Beneficial Interest In Property
Beneficial interest in property refers to a person’s legal and financial stake in a property, even if they are not the legal owner. It can be established through various factors such as financial contributions towards the purchase of the property, mortgage payments and other financial investments. However, in the absence of a written agreement outlining the intention that someone has a beneficial interest in a property, proving beneficial interest is difficult. Unfortunately, verbal agreements or understandings between the couple don’t hold much sway in court if it comes to one person’s word against the other. In the absence of a written agreement a family Court takes a very cautious view towards beneficial interests and will need to be presented with some very persuasive evidence to recognise this interest.
To reiterate, in the context of cohabiting couples, a beneficial interest is not automatically recognised by law. This contrasts with marriage or civil partnerships where there are automatic legal rights and protections, cohabiting couples do not have the same legal rights by default. Therefore, it is advisable for cohabiting couples to have a cohabitation agreement in place to clarify their respective beneficial interests in the property and other important matters.
To protect themselves and their assets, cohabiting couples can enter into a cohabitation agreement. This is a legal document that sets out how the couple’s assets will be divided if they separate. It can also cover other important issues such as child custody and financial support.
A cohabitation agreement is not legally binding but it shows common intention. It can be used as evidence in court if there is a dispute over assets or children but it is important to seek legal advice when creating a cohabitation agreement to ensure that it is fair and enforceable.
Rights of Cohabiting Couples – Property, Children and a Schedule 2 Application
A Schedule 2 application, in terms of the right of children to stay in a property, refers to a legal process in the UK that allows a parent or caregiver to apply for the right to occupy a property with a child. This application is typically made in cases where the child’s parents separate, and are not married or in a civil partnership.
The purpose of a Schedule 2 application is to ensure that the child’s welfare is protected by providing them with a stable and secure home environment. It allows the court to consider the child’s best interests when making decisions about where they should live.
When making a Schedule 2 application, it is important to provide evidence of the child’s connection to the property and the reasons why it is in their best interests to remain there. This may include factors such as the child’s school, social support network and any other relevant considerations.
It should be noted that a Schedule 2 Application will only provide rights to occupy a property until a child is 18 or finishes full time education. At this point the rights to the house will be transferred back to the legal owner and the person who occupied under the Schedule 2 Application can be legally evicted.
How to Protect Your Property Rights as a Cohabiting Couple
There are several steps that cohabiting couples can take to protect their rights and assets.
Creating a Cohabitation Agreement
As mentioned earlier, a cohabitation agreement can help protect the rights and assets of cohabiting couples. It is important to seek legal advice when creating this document to ensure that it is fair and enforceable.
Jointly Owning Property
If a cohabiting couple jointly owns property, they will have equal rights to the property and its value. This means that if the relationship ends, the property will be divided equally between them.
Registering a Civil Partnership
Same-sex couples can register a civil partnership, which gives them similar legal rights and protections as marriage. This includes rights to property, finances and children however, this option is not available to opposite-sex couples.
Rights of Cohabiting Couples – Children
When it comes to children, the rights and responsibilities of cohabiting couples are similar to those of married couples. Both parents have a legal duty to financially support their children and make decisions regarding their upbringing. If the relationship ends, arrangements for child custody and child support will need to be made.
Cohabitation Agreements are Highly Recommended
Cohabitation is the fastest growing family unit in the UK yet it not recognised by UK law. There is a Cohabitation Rights Bill but to date, despite recommendations from numerous groups including the House of Commons Women and Equalities Select Committee, it has never been accepted by the Government. This means the best protection for cohabitating couples is the Cohabitation Agreement and although it may not seem like a romantic route to take, a cohabitation agreement can give stability to a relationship because both parties have a clear understanding of their rights and responsibilities.