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What rights do cohabitees have when separating?

The biggest misconception most couples have concerns the rights they may have against each other if they are cohabiting and not married.

If you are married, but subsequently separate, there is a procedure to follow in order to resolve the divorce and financial settlement.

What happens if you are not married? 

Currently in  England and Wales there are no laws in place setting out what rights/claims cohabitees have against their partner once they separate (this is different in Scotland).  It does not matter how long you have been together, or how many children you have together, the basic point is that you have no automatic rights to make a claim against your former partner.  This is often a surprise to people when they come to us and expect to hear that their partner has a duty to provide financial support following the breakdown of their relationship (which may be the case if you are married).

The reality is that there is no one law which sets out a cohabitee’s rights.  There are various laws which deal with different issues.

What happens to the house?

If you are living with your partner in a house, you need to check how you own it.  Do you own it jointly, does your partner own the property outright, or do you own it?   General property laws apply to the ownership of the property.  If you own it jointly, the position is more straightforward. If you live in your partner’s property, whether you can you make a claim depends on whether you have made a financial contribution to the property. This could be a contribution to the purchase price, the mortgage repayments, work carried out on the property or general household running costs.  If you have, then you are likely to have an interest in the property.  If you have made no financial contribution to the property, it is unlikely that you will succeed in a claim for financial interest in the property but it will depend on your own individual circumstances. 

Does it make a difference if you have children together?

In short, the answer is no.  As there are no laws in place to protect cohabitees, and strict property law applies, it’s not usually a relevant factor that you have children together.  You will have a claim for child maintenance, and you may also have a claim under the Children Act to claim some financial support.  This might be in the form of school fees payments, or a lump sum to cover a specific requirement that the child may have.  It can cover a property for a child, but it is important to note that the property does not belong to the child, it remains the property of your former partner, and they only have to provide a property for you and the child to live in until the child reaches their majority.  Therefore, it is not the same as a divorce when, for example, a property can be transferred to the wife outright.

Is there anything you can do to avoid these issues?

 Yes.  At the beginning of the relationship it is advisable to enter into a cohabitation agreement setting out the expectations of the parties should the relationship fail.  This can include what happens to the house, whether one party can stay in the house with the children until a specific date or what each party will receive from the net proceeds of sale.  Whilst it can be depressing to think about the end of the relationship at the beginning, it is better to have the discussion then, and not when you are in the middle of the relationship breakdown.

Disclaimer: This article is not intended to constitute legal advice.  For legal advice in connection with the above, please contact us directly.

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