Cohabitation, marriage, family.

Cohabitation and the commonly asked questions

Yashin Masoliver, Head of our Family law team, answers the four most commonly asked questions on cohabitation.

What is a common law wife in England and Wales?

The term ‘common law’ marriage refers to an unmarried cohabiting couple, but this is a social term only and does not have any legal meaning in England and Wales.

Do unmarried couples have rights?

There is a misconception that if a couple cohabit, in the same way as a married couple might, this will give the right to make a financial claim if the relationship come to an end. As the law stands in England and Wales that is not the case, irrespective of the length of that relationship or if the couple have children together.

Married partners have a legal duty to support each other financially.  The same does not apply to unmarried partners.

On divorce, a married couple both have the right to make claims against the other for maintenance, capital and pension resources.  They can also seek a transfer of properties into their sole name.  An unmarried couple who are separating do not have the same rights. An unmarried partner who stays at home to care for the children cannot make any claim in his or her own right for property, maintenance or pension sharing.

In 2007 The Law Commission recommended to the Government that there should be legislation to enable financial claims to be made on relationship breakdown. The Government did not act on those recommendations and there is no indication that they are likely to do so in the foreseeable future.

My partner is the sole owner of our house. Do I have any right to make a financial claim against him if we split up?

An unmarried partner cannot make a claim based simply upon the fact that they have been living in a cohabiting relationship.  Rather, to successfully make a claim in respect of a property owned by their partner, they would have to establish that they had an interest as a result of:

  • Making a contribution to the purchase price;
  • There being a common intention that they were to have an interest in the property and that they have acted in reliance to this common intention to their detriment;
  • That the legal owner had led them to believe, either by words or conduct, that they had an interest in the property and they acted on that belief to their detriment, so that it would be fair for the legal owner to insist that they retained ownership outright.

If unable to do establish a claim, then they could have to leave the property if asked to do so.

If an unmarried couple have children, the party who is not an owner of the property can, in certain circumstances, apply to the Court for the property to be transferred to them for the benefit of the children.  This would only be a temporary measure as the property would revert to the owner once the children had reached the age of 18 and completed their education.

The law in this area is complex and legal advice should be sought in relation to your specific circumstances.

Do I need a Cohabitation Agreement?

This is something that should always be considered.  It enables an unmarried couple to regulate their financial affairs.

The agreement must be formally recorded in writing, especially if it intends to detail an interest in a property.

The agreement could provide for a capital sum to be paid. It could also provide that financial support be made during the relationship and even after the relationship comes to an end, but there is the risk that such provision could be held to be void as contrary to public policy.

We can use our expertise in assisting in the preparation of Cohabitation Agreements to seek to protect your position.

If you wish to discuss any legal issues regarding cohabitation or any other family law issues please contact Yashin Masoliver on 01892 526 344 or ymasoliver@berryandlamberts.co.uk.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.