Cohabitation: Understanding Rights, Responsibilities, and Legal Protections
Cohabiting couples in England and Wales face significantly different legal rights compared to married couples or those in civil partnerships. It's essential to understand these differences, especially concerning property ownership, parental responsibilities, and financial arrangements for children.
Property Rights and Ownership
Cohabitants do not automatically acquire a legal interest in the shared home, even if they have lived together for years. When a cohabiting relationship ends, courts do not have the power to make property orders like they do for divorcing couples or those dissolving a civil partnership.
Property disputes between cohabitants are resolved under land and trust law, not family law. To avoid costly disputes, couples should:
- Decide whether to hold the property as beneficial joint tenants or tenants in common.
- Record their decision about beneficial ownership in writing at the time of purchase.
- Create a declaration of trust to formalise their intentions regarding ownership.
Beneficial Joint Tenancy:
- The property is owned jointly as a single entity.
- No individual shares are assigned.
- On death, ownership automatically passes to the surviving owner(s).
- You cannot leave a share of the property to someone else in your will.
Tenancy in Common:
- Each owner holds a defined share of the property.
- Shares can be sold, mortgaged, or left to a beneficiary in a will.
- On death, ownership does not pass automatically to the other owner(s).
Cohabitation Agreements
While cohabitation agreements can help define the terms of financial and property arrangements, they are not backed by specific legislation and rely on contract law for enforcement. It's important to seek professional advice to ensure the agreement is legally valid and clear in its terms.
Parental Rights for Unmarried Fathers
Unmarried fathers do not automatically acquire parental responsibility but can obtain it in several ways:
- Jointly registering the child’s birth with the mother.
- Marrying the child’s mother.
- Entering into a Parental Responsibility Agreement.
- Obtaining a Parental Responsibility Order from the court.
- Being appointed as a child’s guardian.
- Receiving an adoption order for the child.
If a father is not listed on the birth certificate, he can apply to re-register the child’s birth to be added. It's important to note that being named on the birth certificate serves as evidence of paternity, shifting the burden of proof to the father if he later disputes it.
Learn more about parental responsibility
Financial Support for Children: Schedule 1 Applications
Former cohabitants and parents who were never in a relationship can apply for financial support for their children under Schedule 1 of the Children Act 1989. These applications aim to ensure that children’s financial needs are met, even when their parents are not married.
When considering such applications, courts evaluate factors including:
- The income, earning capacity, property, and other financial resources of both parents.
- The child’s financial needs, including any physical or mental disabilities.
- The financial needs, obligations, and responsibilities of each parent.
- The child’s education or training needs.
Property Settlements for Children:
Under Schedule 1, a property can be settled for the child’s benefit until they reach adulthood or complete their full-time tertiary education.
While less common than financial remedy proceedings for divorcing couples, Schedule 1 applications are becoming increasingly prevalent and have distinct procedural differences.
Conclusion
Cohabiting couples have limited legal protections compared to married couples or civil partners, particularly regarding property and financial matters. Taking proactive steps—such as formalising property ownership and parental responsibility—can prevent disputes and provide clarity in the event of a relationship breakdown.
If you require assistance with a cohabitation agreement, property disputes, or applications for financial support, we are here to help.
Explore our free guide to completing Form C100 for related applications.