30/01/2020

Do I have the same rights that I would have if we were married? | Family Law

A couple embracing

The answer is no.  Couples who live together do not have the same rights as spouses or civil partners, even if they have children together.

When couples marry or form civil partnerships but later separate, the law enables the Court to take into account the parties’ particular needs and circumstances when assessing what financial orders to make upon divorce or dissolution.  This can sometimes result in one party retaining more of the matrimonial assets than the other in order to meet their particular housing and income needs.

In the case of cohabiting couples, generally assets owned individually will be retained by that party and any jointly owned assets will be split equally, irrelevant of each party’s individual contribution and irrespective of their needs. 

However, there are ways in which parties can protect their own interests and ensure a partner is provided for if one dies or if the relationship breaks down.  

Couples can enter into cohabitation agreements and / or declaration of trusts to determine who owns what assets and who is entitled to what should the relationship break down.

A declaration of trust is usually used to determine ‘shares’ in a property and a cohabitation agreement caters for other agreed aspects such as paying off debts, joint accounts and financial arrangements for any children.

A home is usually the largest asset a person or couple owns, and for married couples or those in a civil partnership, each person has rights to the property no matter who bought it, who pays the mortgage or who maintains it.

For cohabiting couples this is not the case.  If the property is owned by one party, the other party has no automatic rights either to continue to live there or to a financial interest.  This is irrespective of whether they have contributed to the mortgage, or paid towards building work, for example. However, if these contributions are acknowledged and provided for in either a declaration of trust or a cohabitation agreement, the non-owning party’s interest can be protected. 

More workers are paying into a workplace pension scheme, but unmarried couples do not have an automatic right to the pot of money if their other half dies before or after retirement.  Likewise, unless savings and investments are included in a cohabitation agreement and a will, a couple will have no automatic right to this wealth if they split up or their partner dies.

Whilst a cohabitee can claim child maintenance from a former partner, there is no provision for a cohabitee to claim additional maintenance for themselves whereas with married couples a spouse can claim spousal maintenance from the other in some circumstances. Cohabitees can however agree that upon the relationship breaking down, there will be some ‘additional maintenance’ paid to the other party and this again can be included in a cohabitation agreement.

In summary, although the law relating to cohabitees is wholly inadequate, particularly when compared to the law protecting married couples, there are ways in which couples living together can put in place measures to provide as much protection as possible upon a future breakdown or death. 

For further advice please contact Laura Williams, Senior Associate Solicitor, Family Law, on 01905 730476 or lwilliams@thursfields.co.uk

Laura Williams - Colour

Laura Williams,

Senior Associate Solicitor, Wealth Protection & Family Law

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