As more couples in England and Wales choose to live together without marrying, it’s vital to understand the legal landscape that governs cohabitation—especially when relationships end. Unlike divorce, which is governed by family law statutes offering clear financial remedies, separation for cohabiting couples falls under civil law, often leading to unexpected and costly disputes.
No Such Thing as “Common Law Marriage”
One of the most persistent myths is that long-term cohabitation creates a “common law marriage.” In reality, this concept has no legal standing in England and Wales. Cohabiting partners do not acquire the same rights as married couples, regardless of the duration of the relationship or whether they have children.
Property and Financial Entitlements
When cohabiting couples separate, property disputes are typically governed by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). If a property is jointly owned, the starting point is usually a 50/50 split, even if one partner contributed more financially.
If the property is in one partner’s sole name, the other must prove a beneficial interest—often through financial contributions or a shared intention to own the property differently than recorded.
To avoid costly litigation, couples are strongly advised to create a cohabitation agreement and a declaration of trust when purchasing property. These documents can clarify ownership and financial arrangements, reducing the risk of disputes later on.
Children and Parental Responsibility
The law treats children of cohabiting couples the same as those of married parents. Parental responsibility is automatically granted to mothers and to fathers who are named on the birth certificate (for children born after 1 December 2003) or who were married to the mother at the time of birth.
Upon separation, decisions about where children live and how much time they spend with each parent are based on their best interests—not the marital status of the parents.
Child maintenance is handled by the Child Maintenance Service, and in some cases, the court may order financial provision for the child’s benefit under Schedule 1 of the Children Act 1989, particularly if one parent is significantly wealthier.
Financial Support Between Partners
Unlike divorcing spouses, cohabiting partners have no automatic right to financial support from each other. There is no entitlement to spousal maintenance or pension sharing. Each partner is responsible only for debts in their own name, unless jointly held.
Protecting Yourself Legally
To safeguard your interests, consider the following:
Cohabitation agreement: Outlines financial responsibilities and asset division.
Declaration of trust: Specifies property ownership shares.
Will and life insurance: Ensures your partner or children are provided for in the event of death.
Final Thoughts
Separation is never easy, but understanding your legal position can help you navigate it with clarity and confidence. Seeking legal advice early—especially if property, children, or significant financial contributions are involved – is key. With the right planning, cohabiting couples can break up without breaking the bank.
How Nelsons Can Help
Hannah Bridgwood is a Senior Associate in our expert Family Law team. She specialises in cohabitation, the breakdown of marriages and civil partnerships and domestic abuse.
If you have any further questions or want to discuss any aspect of this article, please contact Hannah or another member of the team in Derby, Nottingham or Leicester on 0800 024 1976 or via our online form.
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