Cohabitation has been the fastest growing family type in the UK for several years. Couples are less concerned about making those relationships ‘legal’ through marriage or a civil partnership.
Cohabitation is not a legal status. Whilst there is an ongoing push for this to change, from family law professionals, politicians and other campaign groups, this remains the case. If you are a cohabiting couple, you are not entitled to the same rights as your married counterparts, regardless of the length of time you have lived together. There is no such thing as a ‘common law marriage’.
This can make the practicalities of separation difficult, on top of the emotional fallout.
Key considerations for separating cohabitees
There are two main areas that separating partners will need to think about which reflect the issues married couples face: finances (including property) and children.
Finances
Marriage legally interlinks a couples’ finances. Upon divorce, individuals will undertake financial disclosure, and then the ‘matrimonial pot’ will be split.
However, cohabitees do not legally have such a pot, and there are only very limited claims one can make on the other after separation. This is usually reserved for joint assets, primarily property.
Property for cohabitees falls under a complex law called the Trust of Land and Appointment of Trustees Act 1996 (TOLATA). This Act gives the court power to make decisions regarding property where there is a dispute between unmarried couples.
This piece of legislation is complex, and you should seek expert legal advice to fully understand your position and whether you can bring a claim. This will largely depend on how the property is owned, e.g. as joint tenants, tenant in common or sole ownership, and the contribution each party has made towards it.
Other than property, there are very few financial claims you can bring against an unmarried ex-partner. There may be pension claims, but this is entirely dependent on the specific scheme and whether it caters for unmarried couples.
Children
Whilst you cannot make spousal maintenance claims, or split assets in the way a divorcing couple would do, children are the exception. The law views parents as parents, whether they are married or not. This means the welfare of children is protected.
If you have children with your ex-partner, you will likely be able to bring a Schedule 1 claim. This is a specific application for unmarried parents, where the financially weaker party seeks compensation and maintenance payments from the other parent. Any financial support must be for the benefit of the child, such as education costs, maintenance payments or housing allowances.
The Child Maintenance Service (CMS) has a framework to help calculate child maintenance payments – this is for all parents, married or unmarried.
Support with practical decisions
Ideally, you and your ex would be able to come to agreements amicably between yourselves. However, mediation can support with dispute resolution, and you should seek legal advice to understand your rights. A family lawyer can support with any property or children claims should you need to go through the court.
Emotional realities
Relationship breakdown can be practically and emotionally complicated. We have explored the practical obstacles that cohabiting couples may face, but breakups are not just practical. Whether you are separating after one year, or 40 years, you will experience a range of emotions.
Here are some top tips on navigating the emotional side of separation:
- Build your support network – surround yourself with people who make you feel your best and will navigate the good and bad times with you
- Seek professional support – counsellors, therapists, divorce and breakup coaches, family lawyer etc
- Permit your emotions – some people find writing their emotions down helpful, or making time for experiencing the feelings in full
- Set healthy boundaries – this includes social media and don’t text your ex unless it is for practical purposes (even then, apps can be helpful to limit interaction to needs e.g. OurFamilyWizard)
- Exercise and spend time in nature – find something you love doing and that helps you get a clear head.
Read about rebuilding self-confidence after divorce.
Mitigating risk
There are things you can put in place to mitigate the potential financial impact in the event of relationship breakdown:
Cohabitation Agreement – not a legally binding document but sets out finances, assets, plans for children, pets etc.
Declaration of Trust – a legally binding document provided to the land registry to explain how property is held, and how it should be divided upon sale.
It may also be an idea to make a Separation Agreement if you have broken up. This is not legally binding but can clarify specific matters important to you and your ex.
Useful Links
Legal Q&A – “We’re separating after 16 years, what are our rights?”
