Separation and Cohabitation Claims
The reality is that in the UK there is no legally recognised concept of a common law husband or wife. That means if an unmarried couple split up, they cannot make the same financial claims that a married person can make. Instead, a cohabitee must rely on property, rather than family law, to bring claims against a former partner, making the law for unmarried partners complex and confusing.
How can OTS Solicitors help?
OTS Solicitors specialise in resolving family law problems for both married and cohabiting couples, whether their legal issues relate to children and parenting arrangements or property and other financial claims.
To speak to family solicitor Angelique Holm or to a member of the London based OTS Solicitors family law team about your situation please call us on 0203 959 9123 for an initial discussion about how we can help you. Alternatively, you can contact us through our online enquiry form.
Unmarried couples and property rights
There is no one piece of UK family legislation governing unmarried partner’s property rights. That means if a cohabiting couple separate their property and assets are divided through:
The terms of any declaration of trust;
The terms of a cohabitation agreement;
Through specialist family law solicitor negotiations or mediation; or
If agreement cannot be reached and court proceedings are started, in accordance with strict property laws and rules rather than any special legislation or rules for resolving property disputes between unmarried couples.
Unlike in divorce law, the family court does not have wide-ranging discretion when resolving cohabitee property claims. Instead, judges must make findings about property, trusts and the couple’s intentions. As this is a very complex area of law it is sensible to get early and specialist legal advice from top London family law solicitors.
What property claims can be made
If you are in a cohabiting relationship you can make the following claims:
If you jointly own a family home or other property with your cohabitee, you can claim a share in the property. You will not necessarily get half the money in the property. Much will depend on how you purchased the property (either as joint tenants or tenants in common) and whether you signed a declaration of trust or a cohabitation agreement;
If you or your cohabitee own a property in your sole name, the partner who is not the legal owner of the house can claim a share in the property provided they can establish that there was a trust or a promise;
If you have a dependent child, you can make a claim for housing for the child;
If you have a dependent child and you are the main carer of the child you can claim child support;
If you have a dependent child and you are the main carer of the child then, in some family situations, you can apply to court for a top up maintenance order for the child or for a school fees order to cover the cost of private school fees.
Can a cohabitee claim maintenance?
Generally, the only maintenance that a cohabitee can claim is child support for a child. The court does not have the power to make spousal maintenance orders for unmarried partners.
Can a cohabitee claim a share of their partner’s pension?
A cohabitee cannot ask the court to make a pension sharing order. The court only has the power to share pensions if a couple are married.
Can a cohabitee claim a share of their partner’s business?
A cohabitee can only claim a share of a cohabitee’s business if there was an agreement that the business would be shared or they are a shareholder. If a couple are married the divorce court has wide ranging powers to make orders over business assets and to make decisions on what the court considers to be a fair outcome, rather than focussing on property and share rights.
If a cohabitee is an employee in their partner’s business then they will have rights as an employee. They may be able to make employment law claims.
What happens to the family home if cohabitees split up?
If the family home is owned jointly as ‘‘joint tenants’’ the starting point is that the equity in the property will be split equally. This can apply even if the couple made unequal contributions to the house deposit or mortgage payments.
If the family home is owned as ‘‘tenants in common’’ the start point is to look and see what was recorded as the agreed percentage split of the equity in the property.
If the family home is owned in one partner’s sole name then the other partner can make a property claim if they:
Paid towards the deposit; or
Paid towards the monthly mortgage payments; or
Made or paid towards repairs or improvements to the property; or
Made an agreement that the non-owning partner would have an interest in the property; or
Say that an agreement can be inferred that they would have an interest in the property.
If an unmarried couple have dependent children then whether or not the family home is owned jointly or by one partner, an application can be made to court for housing provision until the children are no longer dependant.
Declarations of trust and cohabitation agreements
If you live with a partner, or contemplate doing so, all top London family law solicitors would recommend that you sign a declaration of trust or a cohabitation agreement. These types of documents record what was agreed between you. They reduce the likelihood of a property claim.
What steps should an unmarried couple take if they separate?
In addition to sorting out childcare arrangements and whether any property should be sold and how the proceeds should be split (or if the property is transferred to one partner how much money the other partner should receive) cohabiting couples also need to:
Take legal advice on whether they need a new Will; and
Consider whether their power of attorney needs to be amended; and
Check and amend any life insurance provision and pension nominations; and
If relevant, take expert legal advice on any immigration status issues that may arise because of the breakdown of the relationship.