The glaringly obvious point to make is that if a couple co-habit, but do not marry, then the law that applies to them if they separate will not be divorce law. Divorce law is concerned with achieving fair outcomes and, in particular, it takes account of the needs of all concerned.
The law that applies to cohabitees is the law of property and trusts and is based on establishing their strict property rights or establishing what a couple may have agreed; the outcome may be quite different to the one that divorce law would have supplied had they been married.
A former co-habitee, for example, has no right to maintenance in their own right and there can be no Pension Sharing Orders .
Before they cohabit, or even after they have started to do so, some couples look to record their various agreements about money and property in a written Co-habitation Agreement. As with Pre-Nuptial Agreements this may not seem very romantic, but being clear with one another at the outset may help a couple avoid arguments later over money and property.
A good time for a couple to consider making a Co-habitation Agreement is when they have been living together for some time and are about to buy their first home together. Please see our notes on Joint Ownership.
We are happy to prepare a Co-habitation Agreement for you.
Disputes between co-habitees
These are usually concerned with deciding a couple’s respective interests in a property which they have either bought in joint names or which is owned by only one of them but to which the other feels they have made a valuable contribution.
Where a property is jointly owned by a couple, they will own it either as ‘joint tenants’ or as ‘tenants in common’; see our notes on Joint Ownership. If they own it as tenants in common there may be a Declaration of Trust which sets out the size of their respective interests. It may be necessary to see exactly how the conveyancing was done when the property was bought.
Where a property is owned by only one party, the other may still claim an interest in it. The non-owner will sometimes say there was an actual agreement that the two of them should each have an interest in the property. In other cases the non-owner will ask the Court to infer from the facts of the case that there was an agreement that they should have an interest in the property, for example if the non-owner has spent significant money on the property.
Individual cases depend on their own facts and it is important to be able to give a detailed history of what happened and what was said or agreed; this is a complex topic and you will need legal advice about the existence of a valid claim and about the value of any claim .
If matters cannot be agreed, either party can make an application to the Court and ask for a declaration as to the existence and size of their interest in the property and, in appropriate cases, for an Order that the property be sold
Where there are children
A common situation is that the couple who separate have children of their own living with them. The first step is to establish the respective property interests of the parents and then to consider if the parent with whom the children will be living is able to bring financial claims on their behalf. See our notes on Children – Financial Claims.
This is another area where the law often provides much less generous provision for the unmarried mother with whom the children will have their main home than it would have done for a married mother following a divorce. A married mother who is divorcing may often receive a greater share of the capital in her own right because, among other reasons, her future care of the children will be seen as a future contribution to their welfare. An unmarried mother, however, will first need to establish her own property claim and then, if appropriate, look to the father to make additional capital available to her from his own resources so as to help her house the children. The capital he provides will then revert to him when the children grow up.