Cohabitees And Divorce – Some Differences

Cohabitees and Divorce – some differences

There is limited financial protection for cohabitees unlike married couples who are given different and greater protection upon the breakdown of their relationship. The “common law husband/wife” concept has not existed in England since 1753 unbeknown to most people.

Below is a very brief summary of the position as it affects couples who are not married to each other whether it is a heterosexual or same sex relationship.


With respect to the children of the relationship, financial assistance can be sought through the Child Support Agency (as most people refer to it still). If this is the case, then you can simply apply to the CSA for maintenance for your children as you would if you were a married couple/same sex partnership.

With respect to residence (custody) and contact (access), generally the position is that the mother of the children will always have parental responsibility for the child/ren. The father (or same sex partner) of the children can acquire parental responsibility either by:-

a)      Agreement. That is by signing a parental responsibility agreement form.

b)      Order of the Court.

c)      Subsequently marrying the mother (or same sex partner) of the child.

Until both parties have parental responsibility the father (or same sex partner) is not treated as an equal in the upbringing of the child/ren and in that situation it is always best to seek legal advice.

Once parental responsibility has been obtained however, the Courts will be primarily concerned as to what is in the child/ren’s best interest; the Court will not necessarily be concerned whether or not the parties are married and not  favour one parent, for example the mother, over the other.



Owned Property

If the deeds of a property are in the name of one person then that person is known as the legal owner of that property, and therefore, has the power to deal with that property as he or she pleases.

However, if one party does not have a legal interest in that property then he or she can claim interest in the property known as a “beneficial interest”. That person may claim a beneficial interest if they have contributed somehow towards the acquisition of that asset, for example, by doing substantial re-decoration or improvements to a property, or paying towards the initial deposit of the purchase of the property etc.

It may also be the case that a party can claim a beneficial interest if, at the time of the purchase, there was an agreement or understanding that both parties would have a share in it even though one person’s name alone is on the deeds.

The person whose name is not on the deeds would have to, in some way, probably show that they relied on the understanding to their detriment e.g by giving up a job or another tenancy agreement. This area is very complicated and very difficult to explain in any greater detail in this article, so you should take fuller legal advice on this point if you think it applies to you.

If the property is in joint names then both parties are the legal owners of that property and then both have the joint right to deal with that property as they so see fit.

Either party may ask the Court for an Order that the property is sold. The Court will look at a number of factors including:-

a)      The intention of the parties when they purchased the property.

b)      The purpose for which the property is used.

The Court will, therefore, look to see why the property was bought; the normal purpose is to provide a home. Where the relationship has broken down, the purpose of the home no longer continues, and therefore, the Court may order the sale of the property.

This is a complicated area of law, so you should take fuller legal advice on this point if you think it applies to you.

Compare this with a divorcing couple who will be subject to entirely different rules (known as the section 25 factors) and note that a Trial Judge could award the property to say the wife, even though it may be in the sole name of the husband or vice versa.


Rented Property

If the property is rented, then the right to occupy that property depends on whose name is on the tenancy agreement. If the tenancy agreement is in one person’s name then that person has the sole right to occupy. In certain cases an application can be made under the Family Law Act 1996 for the tenancy agreement to be transferred into the other party’s name, for example, where there has been violence, threats of violence, or it would be better under all the circumstances that that should be the case.

If the tenancy agreement is in joint names, then the right to occupy that property is given to both parties. If one person vacates the property, then both parties will be liable for the rent (including the person who is not in occupation) until the tenancy agreement comes to an end.


Again, a divorcing couple (heterosexual or same sex) would be subject to entirely different rules (known as the section 25 factors) and the Trial Judge could award transfer the tenancy of the property to say the wife, even though the tenancy may have been in the sole name of the husband for a number of years or vice versa.


Assets (possessions)

With respect to assets e.g television, furniture etc, the general rule is whoever purchased the items, owns it. If the items were a gift from one party to the other then the item is owned by recipient (i.e the person for whom the gift was intended).

If the items were purchased jointly then the item belongs to both parties (usually 50% each) unless one person can show that they paid more towards it. If one person can establish that they paid more towards it then they will own a greater percentage of that asset.

However, in regards to a married heterosexual or same sex couple, the assets, at least initially, would be treated as acquired by both parties and as joint matrimonial assets.


The law in relation to cohabitees is very complicated. Please contact us for further advice before embarking on any particular course of action.


This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat


0207 183 2898


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