Your Industry  

How to advise unmarried, cohabiting couples

  • Explain how rights of a married couple compare to a cohabiting couple
  • Explain how property ownership is determined in a separation
  • Explain how a cohabiting agreement is drawn up

Further, if there is a dispute regarding how the property is dealt with upon separation, and a settlement cannot be reached either through negotiation or alternative dispute resolution (ADR), the route to any resolution will likely be an acrimonious and costly one as they have to pursue their claim through the Trusts of London and Appointment of Trustees Act 1996 (known as Tolata). 

Cost of separation

It is difficult to advise a client who wishes to pursue a Tolata claim because while the prospect of success may be achievable it will be extremely costly for all parties involved- whatever the result.

As the law currently stands in the UK, a cohabiting couple who have decided to separate will not only have to deal with the emotional fall-out but also the financial one should they wish to assert their claim or beneficial interest in the property they were living in together during cohabitation. 

It is clear, that the law in the UK does not properly reflect the society we live in nor does it provide protection for those who find themselves in this situation, which is not uncommon especially given the rise of cohabiting couples in the UK at the moment.

Reforming the law for couples who live together is long overdue and should be on the government’s priority list. By taking this step, we hope to have a family legal system fit for the 21st Century and reflective of the society we live in. 

So, what happens to the property when an unmarried/cohabiting couple separate?

If an unmarried/cohabiting couple separates, one thing to remember is that neither of them automatically acquires a legal interest in assets, including property, held by the other regardless of how long they have lived together. 

As with all these cases, every couple’s living situation is different and therefore the starting position would be to look at who legally owns the property and how outgoings such as the mortgage and bills were paid.

If for example, one partner owns the property and they separate, the starting position would be that the partner who owned the property would keep it and the other would not be entitled to anything from the property.  

However, there are certain situations which could mean that the partner who didn’t legally own the property could be able to argue that they were entitled to some sort of share of the property, otherwise known as a ‘beneficial interest’ in the property.

Resolving disputes

Given that there is no such thing as a common law marriage and cohabiting couples have no legal rights, any claim would need to be brought under the laws of property and trusts which would be used to resolve any sort of dispute of this nature.