Your legal rights as a partner vary depending on whether you and your partner are married or unmarried.
This is very significant in the event you separate from one another as there are fewer legal rights if you are unmarried, compared to a married couple.
What is cohabitation?
Cohabitation is where an unmarried couple live together prior to or instead of marriage/civil partnership.
It is the one of the fastest developing types of family life and living arrangements in the UK. ONS Statistics show that the proportion of people residing as cohabitees has increased across all age groups from 20.6% in 2011 to 24.3% in 2021.
Despite the prevalence of cohabiting couples in the UK, unmarried partners living together have very few rights in respect of one another’s assets than if they were married.
Does a common law marriage exist?
Many people believe that a cohabiting couple are “common law married” if they have lived together for a number of years. It is believed that this affords the couple with similar rights to married couples without the need of getting married to one another. The concept of common law marriage does not exist in the UK and no rights are afforded to one another without being married, regardless of the length of time a couple has lived together. This remains the case even if the couple have children or own property together.
Similarly, for couples belonging to religious communities in which religious marriages take place, instead of legal marriages, no legal protection is afforded, despite their considerations that they are married.
What am I financially entitled to as a cohabitee following separation?
Cohabitees have no legal responsibility for financial provision to one another following separation. Your ex-partner has no responsibility to provide you with any financial support once your relationship has ended.
If you and your partner have children together then there may be entitlement to child support payments. Child Support is regulated through the Government’s Child Maintenance Service.
What are my rights as an unmarried parent towards my children?
Parental responsibility includes all the rights and responsibility a parent has towards their child.
Mothers who are unmarried automatically have parental responsibility for the child.
Unmarried fathers obtain parental responsibility by being registered on the child’s birth certificate. This can be done by way of a joint registration of the birth, completion of a statutory declaration of parentage or if the mother is not agreeable, making an application to the Court for parental responsibility.
What are my legal rights as a cohabitee, if my partner dies?
If the deceased has left a Will in which provisions have been made for their partner, then their Death Estate will be distributed in accordance with the Will. This will be done by way of a process known as Probate.
In the event the partner has died without a Will, then there is no automatic entitlement to the Deceased’s estate. The legal rules known as Rules of Intestacy will determine who inherits the estate and unmarried partners are not included under the rules of intestacy.
It may be possible in some specific circumstances for a surviving partner to make a claim against the Deceased’s estate, commonly referred to as an ‘Inheritance Act claim.’
Under the Inheritance (Provision for Family and Dependants) Act 1975, a surviving partner can make a claim provided:
- The Deceased died without a Will
- The Deceased had a Will however did not make adequate provision for their partner.
It is important to note that the surviving partner only has 6 months to make a claim once the Grant of Probate or Letters of Administration have been issued by the District Probate Registry.
The Court will consider a range of factors and the maximum entitlement is for reasonable financial provision as far as necessary to maintain the surviving partner, and as far as the Estate can provide.
What is a Cohabitation Agreement?
Cohabitation Agreements can be drawn to protect legal rights of cohabitees in the event of a separation. They are legal documents that set out clearly how matters are to be resolved if you both separate. For instance, they can document division of any assets you own together.
Whilst these are not binding, they are very useful in the event a dispute arises as they clearly show the intentions of the parties upon separation.
What are the property rights I have as a cohabitee?
Financial remedy claims in a divorce matter are dealt with under the Matrimonial Causes Act, which aims to put both parties in an equal position as far as possible and ensure the Court is fair to the parties.
Where the couple are not married and are cohabitees, although the issue may appear as a ‘family law dispute,’ there are fewer legal rights for the parties, and they must make applications to resolve the dispute under the Trusts of Land and Appointment of Trustees Act (ToLATA) 1996.
How can unmarried couples own property?
There are 3 main ways in which property can be owed by cohabitants:
- Joint tenants: Both parties are named on the mortgage of the property. Upon the death of one party, the right of survivorship applies: this is where the whole property passes to the surviving partner automatically.
- Tenants in common: where the interest of each party is held distinctly in their own shares. E.g.: 73% to one partner, and 27% to the other partner. They are then able to transfer or dispose their interest without any interest of the other party being affected.
- The property is solely owned by one party. Usually this is where disputes often arise.
What are my rights as a cohabitee, if my partner solely owns the property?
Where one partner owns the property, the party who is not the legal owner must demonstrate that there is a beneficial ownership. This is usually done by showing there was some form of agreement between the parties that the home should be shared.
One way of doing this is by establishing that there was a constructive trust:
- There must have been a common intention between the parties. This may be express or implied. Contributions you have made towards the property can be used to determine the intentions of the parties.
- There must have been detrimental reliance on this intention by you.
- It must be demonstrated that it would be un-conscionable to deny you of your rights.
If it is found there was a constructive trust, the issue then arises as to how your share is to be quantified. The Court will consider what is fair in line with the parties’ dealings between one another in relation to the property.
How can I protect my rights as an unmarried ex-partner if we are able to reach an agreement?
Once an agreement has been reached, it is important that this is clearly documented within a Deed of Separation.
A Deed of Separation will contain all the terms you have both agreed and is signed by you both in the presence of an independent witness.
Deeds of Separation are extremely useful legal documents which can clearly evidence the intentions of both parties at the time of separation, particularly if your ex-partner decides to bring a ToLATA claim against any assets you own thereafter.
What if my ex-partner does not agree I have a share in the property they solely own?
Unmarried couples are often unable to reach an agreement as to ownership of the Property.
If your ex-partner does not accept that you should have a share in the Property, then you have the option to commence Court proceedings under ToLATA 1996.
What applications can be made under ToLATA 1996?
Under ToLATA, there are 3 main types of application to be made:
- Order to confirm an interest and ownership of the property
- Order to enable the Applicant to have access to the Property where one is refusing to leave
- Order of a sale of the property.
What if the dispute involves children?
Where the people with parental responsibility of a child are not married and are in the process of separating, then an alternative to a claim under ToLATA is to proceed with an order under Schedule 1 of the Children Act 1989 whereby the Court can make an order requiring settlement to be made for the benefit of the child, such as for one party to provide money to provide a home for the couple’s child.
How is a claim under ToLATA commenced?
The first step for the Claimant is to send a Letter before Action to the other party (the Defendant) setting out the case, alongside supporting evidence. This letter provides the Defendant clear information regarding the dispute over the property and the proposals of the Claimant to resolve the dispute.
The Defendant then has a specific amount of time to respond to the letter. Their response must confirm whether they are in agreement to the claims within the letter of claim or if they dispute this. It must also confirm whether they intend to defend a ToLATA claim.
What if Defendant intends to defend a TOLATA Claim?
Following the Letter before Action, if the matter is not resolved then Court Proceedings can then be issued.
It must first be assessed whether proceedings should fall under Part 7 or Part 8.
- Part 7 TOLATA proceedings include an N1 claim form and particulars of claim. These are more commonly used where there is a substantial dispute of fact anticipated.
- Part 8 TOLATA proceedings are used where there is not a dispute of fact and so, no need to put forward particulars of claim. The claim will include Form N208 alongside a witness statement.
In both instances, proceedings are commenced by filing a claim form which will detail the basis of the TOLATA claim, value of the claim, what the Claimant is asking the Court to do and any evidence being relied upon.
The Defendant will file a defence detailing their reasons for disputing the claim.
The parties will then file their respective directions questionnaires, and the claim will be allocated to the appropriate track before case management directions are given and a trial date is set.
During the course of TOLATA Proceedings, the parties will also be required to provide witness statements and expert evidence may need to be obtained to rely upon during the proceedings.
Parties can choose to settle the matter at any time during the course of proceedings if they are able to reach an agreement independently.
What will the Court consider for a TOLATA Claim?
Within TOLATA Claims, the Court’s powers are narrow. The Court can only determine the proportions property is owned in as per the parties’ intentions, and cannot vary these proportions of co-ownership between the parties to a fairer position, as would be the case in financial settlement upon divorce.
The Court will need to consider 2 key issues:
- Entitlement to occupying the Property
- The nature and extent of property ownership
When assessing the above, under Section 15 of ToLATA 1996, the Court must have regard to:
- the intentions of the person or persons (if any) who created the trust,
- the purposes for which the property subject to the trust is held,
- the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and
- the interests of any secured creditor of any beneficiary.
