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Busting the myth – “common law marriage”

There is a common misconception that “common law marriage” provides cohabitees with the same rights as married couples. The reality is that cohabiting parties have no statutory protection recognising their relationship status in the event of a relationship breakdown. In contrast, the court has the power to make a wide variety of orders upon the breakdown of a marriage. More particularly, the Matrimonial Causes Act 1973 allows for the division assets and income between parties upon divorce.

In her latest article, Sarah Snow, Partner in our Private Client team, looks at the top questions and concerns people may have upon the breakdown of a cohabiting relationship.

The property I shared with my ex is in his sole name, can I stay there now that we are separated?

When a cohabiting couple separate, any disputes in relation to the home are dealt with under property law. If you are not the legal owner, you do not have an automatic right to remain in the property once your relationship has broken down. This means your former partner may give you notice to vacate the property, within a reasonable timeframe.

In certain circumstances, however, you may have grounds to apply to the court to stay in the home. Under the Family Law Act, the court has the power to make orders determining occupancy of the home. When considering whether to make an order the court applies a “balance of harm” test. This involves a review of the risk you and / or your child may suffer if you are forced to vacate, against the potential harm suffered by your ex-partner if they are forced from the home.

The court will only make these types of orders when it is fully satisfied it is necessary. Therefore, they can often by difficult to obtain, unless the circumstances are extreme.

I paid 100% of the deposit but the title to the property states that my ex-partner and I are joint owners, can I claim my deposit back?

Unless you are able to provide strong evidence to the contrary, you will likely face an uphill battle persuading the court that your deposit should be returned.

When purchasing a property, you are typically asked by your conveyancer whether you wish to own the property as tenants in common or joint tenants. If one partner has contributed more to the purchase price, then it is advisable to own the property as tenants in common. A declaration of trust can then be drawn up setting out specifically how the property is owned. If the title to the property is not registered in this way, then the property is held equally, on a 50/50 basis, by both parties.

It is hard to persuade the court that the ownership differs to what is stated on the title. To do so, you would need to apply under the Trust of Land and Appointment of Trustees Act 1996 (ToLATA). One of the things you would be expected to demonstrate (and evidence) is that there was a mutual intention between you and your ex-partner that you would receive your deposit back.

These proceedings can be extremely expensive, so it is important to undertake a cost benefit analysis before embarking upon any kind of litigation. You should also note that cost orders can be made against losing parties in ToLATA proceedings.

Do I have a right to share in any of my partner’s assets and / or income now that we are separating?

The short answer is no. If you believe that you have an interest in your ex-partner’s assets, then you will need to seek separate legal advice under civil law.

We have children together, how do we agree upon arrangements for spending time with the children?

Parents are encouraged to try and reach voluntary arrangements between themselves regarding their children, either directly or via mediation. Each family circumstance is unique and parents are best placed to understand what arrangement would be in the best interests of their children. However, this is not always possible and there might be times when disputes arise regarding how the children should spend their time between the parents.

When such disputes arise, the court has the power to make a wide range of orders under the Children Act 1989. When doing so, the court must make the child’s welfare the paramount consideration and will consider a “welfare checklist” at section 1 of the order. The court may make a child arrangements order regulating who the children shall live with, spend time with or otherwise have contact with a person. The court may also make orders restricting one party from taking a particular step without the court’s permission. This is known as a Prohibited Steps Order and may include issues such as changing a child’s name or relocation of the child. A parent may also apply for a Specific Issue Order, where the court can make a determination regarding a particular dispute, which may have arisen, over a choice of school or medical decision, for example.

Am I entitled to maintenance for our children, even though we are not married?

The Child Maintenance Service (CMS) has jurisdiction for assessing child maintenance. Again, parties are encouraged to try and reach a family-based arrangement and the CMS website includes an online calculator to facilitate such discussions. If this is not possible then you may apply directly to the CMS for a calculation. There are circumstances where you may apply to the court for a “top up” order if the paying parent’s salary is above the CMS assessment limit and additional maintenance is appropriate in the circumstances. The court can also make orders in respect of education expenses or expenses associated with a disability.

The future for cohabiting couples?

It is clear that a cohabiting partner is at a significant disadvantage to a married partner upon a relationship breakdown. In 2007 the Law Commission made clear recommendations for reform. In August 2022, the Women and Equalities Committee of the UK Parliament published their Report on the Rights of Cohabiting Partners, which set out recommendations for reform. Reform can only come about by legislative change enacted by Parliament. As yet, successive Governments have failed to commit to make any change.

Sarah is an experienced family lawyer based predominantly in our York office. She has been practicing in this area of law for over 14 years and has a broad range of experience in dealing with divorce, separation and complex financial applications and private children applications.

For help and advice on cohabitation, or any other private client matter, please get in touch with Sarah by calling 01482 325242 or emailing


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