Cohabitation Issues

When a relationship ends, you don’t have to be married to need a family solicitor. If you have broken up with your partner you may need expert legal advice to make sure you know what rights you have on the breakdown of the relationship.

We can also draw up cohabitation agreements for couples who wish to minimise any uncertainty as to their rights if they should break up.

According to the Office for National Statistics the fastest growing demographic in the UK is cohabiting couples and the number of those couples rose by 30% between 2004 and 2014. Whilst shunning marriage, these couples are still hitting those big relationship milestones such as having children and buying a home together. This means that when a cohabiting couple separate it can be quite complicated as the law does not view such couples in the same way as it does married ones.

Common law marriage in the UK

In the UK there is no legal recognition of a common law wife or husband. While the term ‘common law’ is in wide usage to describe a long-term couple who have never married, in reality, there is no such thing under the law in England and Wales.

Cohabiting couples have few legal rights and responsibilities relating to each other and unlike in divorce the courts have no discretion to reallocate assets or to grant maintenance. The only time the Family Court can get involved is with issues regarding children.

What will happen to any property we own or rent if I break up with my partner?

If you own a property with your partner and are not married and you split up, how the property is distributed between the couple will not be decided by family law but by complex trust law.

If you are joint owners of a property (joint tenants or tenants in common in equal shares) you and your partner have equal rights to stay in the home and can also make a request to the courts for it to be sold, if for example neither of you can buy the other out, but your ex-partner will not agree to the property being sold.

If you have children and are their primary carer it is possible to ask the Court to make an order under the Children Act 1989 to transfer the property into your name, however, this will only be for a limited period, for example until the youngest child is 18 years old.

If you are the sole owner of the property, then you have the right to stay in the home and your partner will not have much recourse to occupy the property if you ask them to leave nor, in the majority of cases, will they benefit from it if it was to be sold. That said it may be possible for your partner to claim a ‘beneficial interest’ in the property if they can prove that a trust has been created for example by them having paid the mortgage or having contributed financially to home improvements.

If you rent a property together and your name is not on the tenancy, you will have no right to stay in the property if you separate. If you have a joint tenancy, then you both have the right to stay in the home and are jointly and individually liable for the full amount of the rent regardless of who lives there.

What if we have joint accounts, savings or debt?

If you have a joint account or savings you will have equal rights to the money. So, if you do separate it might be best to close or freeze those accounts as soon as possible so your partner cannot access funds they are not entitled to, or run up any debts on joint credit cards or overdrafts.

Your partner will not have any rights to accounts that are in your name only.

When it comes to joint debts there will usually be joint and several liability for those debts regardless of who was paying for them during your relationship. In addition, if you have acted as guarantor for your partner’s debt you will still be held legally responsible for paying for it if your partner defaults.

Will any maintenance be paid if we were cohabiting?

If you are cohabiting with your partner and your relationship comes to an end, you are not able to claim maintenance from each other as you would if you were married, no matter the situation. However, you can claim maintenance for children.

What happens if we have children?

When you are an unmarried father you do not have an automatic right to Parental Responsibility. You can only get Parental Responsibility if you are named on the child’s birth certificate, have a Parental Responsibility agreement in place or adopt the child. Both parents, however, have a responsibility to financially support any children they may have had together even if they do not have official Parental Responsibility. Upon breakup, if you and your partner cannot agree on contact, then this can be agreed by negotiation between solicitors, with the help of family mediation or as a last resort the Family Court, can get involved and make Child Arrangement Orders.


Barber & Co have qualified family solicitors in Preston as well as in their offices in Darwen and Ramsbottom. If you have split up with your partner or are considering doing so and need expert legal advice, call us today.