What happens when a cohabitating couple splits up?

Cohabitation remains to be a popular choice amongst unmarried couples, with around 1 in 5 couples in the UK cohabiting in 2022.

It is therefore important for cohabiting couples to be aware of what legal recourse is available to them in the event that their relationship sadly comes to an end.

What does the law say?

Unmarried couples do not have the same automatic rights to financial provision as married couples and civil partners do under the Matrimonial Causes Act (‘MCA’) 1973 and the Civil Partnership Act 2004 respectively. This applies no matter how long the cohabitating couple have been living together, as ‘common law’ marriages are not recognised in the UK. There is very limited legal framework which cohabitants can rely upon.

Therefore, unless an asset is in the parties’ joint names, it can be difficult for one party to make a claim against the assets held in the other party’s sole name.

Financial Provision for children

There is some recourse available where an unmarried couple have had children together.

A parent with care of the children can make a claim for maintenance from the non-resident parent. This can either be agreed between the parties or a claim can be made through the Child Maintenance Service.

If a parent is unable to make a claim via the Child Maintenance Service, a parent can also go through the Court and apply for financial provision under Schedule 1 of the Children Act 1989.

Property rights of cohabitants

There are no specific laws that have been expressly created for cohabitants and any claims they can make on any property. Cohabitants must therefore rely on trusts law to determine whether a party’s beneficial interest in a property.

There are two ways for cohabitants to have an interest in property:

1. As joint owners (where the general position is that the property is held in equal shares unless otherwise specified); or
2. If the property is in the sole name of one party, under a trust.

Disputes tend to arise when the property is owned in the sole name of one cohabitant. If there is no express declaration of trust by the legal owner which declares that they hold the property (in specified shares) beneficially in trust for themselves and the other cohabitant party, then it is for the non-owner cohabitant to prove that they do have an interest in the property.

Disputes can also arise where the property is held in the couple’s joint names, but one party is asserting that they are entitled to share greater than 50%. It would be for the party claiming a greater of the unequal share to prove that this was the parties’ common intention, which is only rebutted in exceptional circumstances.

Where such disputes arise, parties should be encouraged to seek legal advice and come to an agreement between themselves as to how the beneficial interest in the property is to be divided. Once such an agreement is reached, this should be recorded in a Settlement Agreement and Release.

If it is not possible to reach an agreement amicably, a party may make an application under Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) for the court to make a determination as to the extent of each parties’ beneficial interest in the property. This application is made through the civil courts, not through the family courts.

A party may also be able to seek the recovery of an additional sum in relation to any payments they have made towards the outgoings that ought to have been shared by the parties and/or any improvements at the property. This claim does not have an impact on the parties’ respective beneficial interests, and a claim for equitable accounting will usually only be dealt with by the courts once the extent of the parties’ beneficial interest has been determined. A party making a claim under equitable accounting principles will need to provide an account with sufficient evidence to substantiate their claim.

In a similar vein, a party can make a claim for occupational rent against the other party where they have been excluded from the property. The idea is that the claiming party has lost out on the benefit of being in the property and have had to pay to live elsewhere, whilst the other party has continued to receive the benefit of living in the property.

Each case will turn on its own facts, therefore it is imperative to seek legal advice should you wish to make such a claim.

Cohabitation Agreements

The most appropriate way for cohabitants to protect themselves financially is to enter into a cohabitation agreement which clearly sets out what the financial arrangements will be between the parties whilst they are living together and what will happen to the assets in the event of the relationship breaking down. Provided that both parties have sought independent legal advice, a cohabitation agreement is legally enforceable.

A cohabitation agreement can be entered into at any point of the relationship. One of the most significant advantages is that by entering into such agreement, the parties will help to avoid the significant cost, time and uncertainty caused by litigation, as the cohabitation agreement will record the couple’s intentions towards the legal and beneficial ownership of their assets. The couple also have flexibility to include whatever financial provisions they wish in this agreement, including ongoing maintenance once the relationship has broken down, which is not typically available to cohabitating couples under statute.

Affording the time to draw up a cohabitation agreement provides clarity for cohabitating couples and may also help to avoid further stress and difficult conversations if the relationship does come to an end.

It is therefore advisable to seek legal advice with regards to drawing up a cohabitation agreement.

For many years it has been apparent that there needs to be significant reform to the law that offers cohabitating couples clearer and more defined rights that mirror the provisions which married couples are able to rely on under the MCA 1973 as the current legal recourse available to cohabitants is extremely limited.

There had been hopes recently that there would be significant steps made towards reform, when Labour’s Emily Thornberry vocally supported better protection for the rights of women in cohabitating couples at the Labour Party conference in October last year, which was also included in Labour’s 2024 Manifesto. Unfortunately, there has been no further progress with this reform since.

It is unlikely that there will be any reform for cohabitating couples in the near future. Cohabitating couples should therefore be aware of their rights upon breakdown of their relationship and how best to protect their individual financial positions under the current law.

Written by Celine Jagmohan (Solicitor)

If you have a cohabitation dispute or are thinking of having a Cohabitation Agreement in place and you need advice, please do not hesitate to contact one of our solicitors from the Family Department on 020 8290 0333 who can assist you.

For further information on our Family Law services, click here.