What happens when cohabiting couples separate?

There are over three million unmarried couples in the UK and ‘cohabitation’ is the current largest growing family type, but people in ‘common law’ marriages remain unprotected by the rights married couples are automatically entitled to when it comes to separation.

There is no such thing as a ‘common law’ marriage – unmarried couples who live together are cohabitants – and there are very few recourses in place to protect them should they decide to part ways unless they have set up the proper legal documentation during their relationship, such as a cohabitation agreement.

When a married couple decides to get divorced, their assets and liabilities will be considered by the court and divided fairly according to their requirements and contributions. All assets – even if they are held in only one individual’s name – will be taken into account, and safeguards such as pension sharing and maintenance may be put in place to protect the future financial stability of one or other party.

However, for cohabiting couples, the court is only able to consider who owns each particular asset, or what official shares each party has in a property, and assign them accordingly. But in the case of savings or pensions or non-financial contributions to their life together (for example if one party has stayed home to raise children instead paying towards a mortgage), couples are not automatically entitled to a share of combined assets, potentially leaving one party less well off than the other after the split.

In order for unmarried couples to protect their finances, living situation and any children in the relationship, it’s important to have an agreement put into writing – much like a pre-nup. A cohabitation agreement is a legally binding document drawn up by a solicitor that sets out the intended division of any assets and liabilities in the event of separation or death. It may also detail your plans for managing your relationship – for example, what each of you intend to contribute towards bills, household responsibilities, and childcare. It should also provide details of joint and individual savings, property, high-value possessions, businesses, inheritance, pensions and investments, and how you would like these to be shared out if you split up. If you have children – whether together or from previous relationships – you should also think about how to protect their wellbeing in terms of maintenance, living arrangements, and plans for co-parenting after a hypothetical separation.

Despite lobbying from family law organisations, associations and solicitors for law reform on increased protection for cohabiting couples, the current situation in the UK unfortunately leaves unmarried couples at a disadvantage when it comes to legal rights. At the moment, the only possible way to safeguard your relationship and your assets is with a cohabitation agreement, or – in the case of property – a Trust of Land and Appointment of Trustees Act claim (TOLATA).

To find out more about your rights as a cohabitant, and to discuss drawing up a cohabitation agreement, speak to the family lawyers at Frances Lindsay & Co. We can help you to set out your intentions for the division of assets, the well-being of your children, and a fair financial future in the event of separation.