Calling all cohabiting couples: this is what you need to know about your legal rights

Marriage is down, cohabiting is up - but make sure you're not at risk if the relationship ends

Did you know marriage rates are declining? It's not too hard to see why - the high cost of weddings, along with diminishing societal pressure to get married, are just a couple of reasons why saying 'I do' has reached an all-time low. And according to the Office for National Statistics, the proportion of the population aged 16 years and over in England and Wales who are married has steadily declined to 50.5 per cent in 2018.

Meanwhile, the number of couples cohabiting has increased to five million people – that's over a 50 per cent increase since records began. But cohabitees don't have the same legal rights as a married couple - the law is very different to when a marriage breaks down, in that you are not entitled simply by virtue of your relationship to make a claim against your partner’s finances: be it income, pension, savings, or even property.

But with only a third of couples being aware of the limits of their rights as cohabitants, Rachel Roberts, managing partner of Stowe Family Law in the Leeds office, reveals five things all cohabitants should do to make sure they're not at risk if the relationship ends...

1. Declare your trust (no, really)

If you’re cohabiting, you should consider completing a declaration of trust (a document confirming the proportions in which two or more individuals own a property). It is particularly important when one person has contributed more and wishes to protect that on a future sale, but it can also reflect another agreement between the couple regardless of financial contributions. It will create certainty from the start, and avoid a costly dispute if the relationship ends. It is worth noting that you can enter in to a declaration of trust at any time, either at the time of purchase or at a later date.

2. Create a cohabitation agreement

Having a cohabitation agreement in place can deal with many other matters including payment of the mortgage and other bills, home improvements and what will happen should the relationship breakdown.

3. Make a will 

It’s important to make a valid will, because if you were to die without having left one, under the rules of intestacy, unmarried couples do not inherit assets owned by the other party, though joint assets may pass depending on how they are owned. There may be the possibility of making a claim against the estate for provision but again, this litigation is costly and uncertain and it is better to plan ahead.

4. Know your property prospects

Cohabitants rarely understand the legal implications of moving in with their partner or purchasing property with them. The significance of who legally owns the house (so the person whose name is on the title deeds) is far more important, and your prospects of seeking a share of assets which are not owned in your name are significantly reduced if you are not married.

However, there are certain legal options available if there is a dispute over property. If the dispute relates to a property that is jointly owned but the shares are disputed, or is in one of the parties’ name but the other thinks they are entitled to a share, you can make a claim under the Trusts of Land and Appointment of Trustees Act 1996 to ask the court to decide what share of the property each party owns and decide whether it should be sold to release one party’s share. The law surrounding this is complex and these civil proceedings can be costly, so it’s worth getting legal advice before beginning a claim, not least because there can be cost consequences if you bring an unsuccessful claim.

5. There are claims for kids 

If you have children, you can make a claim under Schedule 1 of the Children Act for financial provision for the children from the other parent. The court can deal with maintenance for children in limited circumstances, such as where the payer is a very high earner to top up statutory provision and/or for school fees, and can make capital orders such as payment of a lump sum or transfer of a property for the benefit of the children, usually until they’re 18. But note that this litigation is actually relatively rare and can be complicated and expensive, so legal advice is key.