Cohabiting Couples – Separation Rights

Unmarried couples are treated by the law as ‘cohabitees’. Despite many such relationships being akin to a marriage or civil partnership, the concept of a ‘common law marriage’ is not legally recognised. Accordingly, when their relationship ends, cohabiting couples have limited separation rights.

Our family law solicitors have advised countless unmarried individuals eager to understand their rights following the breakdown of their relationship. Our solicitors appreciate that issues such as what will happen to the family home and access rights to any children can cause considerable worry, and they provide straightforward, practical advice to help you make sense of the legal position.

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The types of issues our family law team regularly advises on include the following.

Cohabiting Couples – Separation Rights With Respect To Property

One of the starkest differences between the rights afforded to married as opposed to unmarried couples is with respect to the family home. Those who are married or in a civil partnership enjoy significant property rights under the Matrimonial Homes legislation, but that protection does not extend to unmarried couples.

Of course, some unmarried couples purchase their property together and own it jointly. In these cases, both partners will be entitled to continue living there after separation should they so wish. When the property is sold, they will share the sale proceeds in accordance with their respective shares.

Sometimes, the property shared by an unmarried couple is owned solely by one partner. Contrary to what many believe, non-owning partners in these cases have no automatic rights over the property, regardless of the length of time for which they have lived there. If they wish to assert any rights, they must rely on a little-known statute called the Trusts of Land and Appointment of Trustees Act, commonly referred to as TOLATA.

Whilst TOLATA claims arise most regularly in the context of unmarried couples, the Act can be invoked by anyone claiming to have a beneficial interest in a property. TOLATA claims are extremely complex and rely heavily on evidence, since the Judge will base their decision on what they believe the parties’ intentions were. If the Judge is persuaded that the couple intended to own the property jointly, they can make a variety of Orders, including that the non-owning partner be entitled to live in the property.

Cohabiting Couples – Separation Rights With Respect To Maintenance

Unmarried couples have no continuing financial obligation towards each other when their relationship ends. If the couple has children, their financial obligations in respect of those children continue, regardless of their marital status.

Cohabiting Couples – Separation Rights With Respect To Children

When a child’s parents are married, they both have parental responsibility for their child. Parental responsibility entitles you to a say in how your child is raised. Important decisions such as where your child will be educated and whether they should receive a particular medical treatment cannot be made without your involvement.

If a child’s parents are unmarried, the default position is that the mother has sole parental responsibility. This can be varied if any of the following circumstances are present:

The father jointly registered the birth with the mother and is named on the birth certificate.
The parents enter into a parental responsibility agreement.
The father obtains a parental responsibility Order from the Court.

Crucially, having parental responsibility over a child does not give you an automatic right to see and spend time with them. In an ideal world, the parents will agree access arrangements between themselves, either through discussion or with the help of impartial third parties through processes such as mediation. Unfortunately, however, the couple’s relationship has sometimes deteriorated to such a point that this is simply not possible, and the Court’s intervention is required.

The Court will consider each side’s position and, basing their decision on what would be in the child’s best interests, make a ‘Child Arrangements Order’ detailing where the child should live and whom they should spend time with. As a general rule, the Courts will consider ongoing relationships with both parents to be in the best interests of the child, unless there are reasons to the contrary.

How We Can Help

Our family law solicitors are experts in their field. Their comprehensive, clear advice can help bring clarity amidst chaos, and will help you make decisions that are right for you and your family. They will ensure you understand your rights and options at each stage of your matter and will work closely with you to ensure your position is fully protected and a fair outcome is achieved.