Legal Advice for Unmarried Partners: a Guide to Cohabitation Law

In Brief

According to the Office for National Statistics, there are nearly seven million people in cohabiting relationships. Cohabiting families now account for around 17% of relationships. Although unmarried relationships are growing in popularity, couples who have lived together do not have the same legal protections and rights under current law as couples who are married or in civil partnerships.

Without clear or automatic rights, complex and protracted court proceedings may be necessary to resolve property disputes. The government intends to reform the law to give unmarried partners additional rights. However, until the law changes, cohabitants need to understand their family law rights if they separate from their partner.

Contact Evolve Family Law. 

Key Considerations for Unmarried Partners

1. Living together does not confer the same legal rights as marriage or civil partnership.
2. Cohabiting for an extended period does not make you a common law husband or wife.
3. The law on cohabitation is based on property and trust law rather than needs or fairness.
4. Using trust or property law, a cohabitant may be able to claim a share of their partner’s property – even though they are not a joint owner.
5. Legislation (called TOLATA) gives the court the power to order the sale or transfer of a property.
6. Cohabitants cannot claim spousal maintenance for themselves or claim pension rights.
7. The right to claim child support for children is the same, whether parents were married, in a civil partnership or living together.
8. Cohabitants can sign a cohabitation agreement while living together to record how they want to split their property if they separate.
9. Joint owners of property can sign a declaration of trust to record how the equity in their property will be shared if they separate.
10. The right to spend parenting time with a child and apply for a child arrangement order is the same, whether parents are married, in a civil partnership or living together.

What is a TOLATA Claim?

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) is the legislation that governs property ownership disputes. In TOLATA court proceedings, the judge can decide:

1. Who is the legal owner/s of the property.
2. Who has a beneficial or equitable interest in the property.
3. The property shares that those with an interest in the property hold, normally expressed as a percentage of the net equity.
4. Whether the property should be sold.
5. Who is entitled to occupy the property.

If a couple have children under 18, an application can also be made under the Children Act 1989 for housing provision while the child is a dependent or for a lump sum for child-related expenses. TOLATA focuses on property and trust law, whilst Children Act claims provide temporary housing provision and focus on the child’s welfare and needs.

TOLATA Claims

TOLATA claims can be used to resolve disputes between unmarried ex-partners where one ex-cohabitant seeks:

1. A declaration to resolve property ownership.
2. An order for sale.
3. An order for deferred sale.

The court will require detailed information where claims are brought by cohabitants whose names were not on the title deeds and who are claiming a beneficial interest, or where joint legal owners cannot agree on the extent of their legal ownership.

In a TOLATA claim, the court will need to look at these issues:

1. Did the couple sign a declaration of trust or a cohabitation agreement?
2. In the absence of a declaration of trust or cohabitation agreement, what was the couple’s intention regarding property ownership and equity at the time of the property purchase or when one partner moved into the other partner’s property?  
3. Who provided the house deposit and associated purchase costs, such as stamp duty?
4. Who paid the mortgage? 
5. Who paid for renovations to the property? 
6. What evidence is there of discussions that took place or promises made over property ownership?
7. What evidence is there of contributions made to a property in money’s worth? For example, carrying out DIY renovations to a property.

Each TOLATA claim is decided on the facts and the evidence a claimant and their ex-partner can produce. That’s why it is important to take specialist advice on the merits of a claim so former cohabitants can try to resolve their property dispute using mediation or another form of alternative dispute resolution to avoid protracted court proceedings.

Legal Advice for Cohabitants 

Taking early family law advice can help cohabitants avoid expensive court disputes and protracted litigation.

People in unmarried relationships should have:

• A cohabitation agreement.
• A Will.
• A Lasting Power of Attorney.   

If you are ending a cohabiting relationship, you need:

• A separation agreement.
• A parenting plan. 
• A new Will and Lasting Power of Attorney. 

Family lawyers and estate planning solicitors can draw these documents up for you. 

Risks of not Documenting Your Cohabiting Relationship  

The risks of not documenting your cohabiting relationship become apparent if you separate or if one partner becomes unwell or passes away. 

The risks are:

1. Without a cohabitation agreement, there could be a dispute over ownership of the family home. Non-owners whose names are not on the title deeds or mortgage can claim a beneficial interest in the property and either receive a share of the sale proceeds or have their partner buy out their interest in the house.
2. If a separation agreement is not signed when cohabitants split up, there is a risk that a former cohabitant will return and try to claim additional monies.
3. A parenting plan records the agreement reached on the split of parenting and contact time. Without a plan, disagreements can escalate, leading one parent to ask the court to make a child arrangement order.  
4. If a cohabiting couple do not have Wills, neither of them will inherit from the other. The intestacy rules do not recognise cohabiting relationships. To claim a share of the estate, a cohabitant will have to bring an estate claim and assert that the intestacy rules do not make reasonable financial provision for them.
5. If a cohabiting couple do not have Lasting Powers of Attorney and one of them loses capacity, the other partner has no legal right to deal with their financial affairs or make health and welfare decisions for them.

Family Law Solicitors for Unmarried Partner Disputes

At Evolve Family Law, our specialist team of family law solicitors in Cheshire and Manchester can help with:

• Cohabitation agreements.
•  TOLATA claims for unmarried partners.
• Schedule 1 Children Act 1989 claims.
• Parenting time disputes and child arrangement order applications.
• Child maintenance advice. 
• Parents wanting to relocate with their children (either overseas or within the UK) and relocation order applications.
• Wills for unmarried partners.
• Lasting Powers of Attorney for cohabitants.
• Claims against estates where a claimant maintains that their cohabitant’s Will or the intestacy rules did not make reasonable financial provision for them.   

Contact Evolve Family Law for expert advice.