As the marriage rate across England and Wales has declined, the number of unmarried cohabiting couples is on the rise. However, cohabiting isn’t just an option for unmarried couples, with more and more divorced couples cohabiting too.
In this guide, we’ll discuss what cohabiting is and your rights around it after a divorce.
What is cohabiting?
Cohabiting is the term used to describe a couple who are in a relationship, but are not married or in a civil partnership and live together in the same property. Essentially, it refers to unmarried couples living together.
Cohabitation laws in England and Wales
There is often a misconception that cohabiting elevates the legal status of a relationship, giving what the parties are sometimes referred to as a ‘common law marriage’.
However, there is no such thing as a common law marriage and cohabiting does not actually impact your legal relationship or marital status. Even if you have been together for a significant number of years, you will not have the same legal protection as married couples and this can sometimes seem unfair.
You may be able to formalise elements of your relationship with your partner by drawing up what is known as a cohabitation agreement or ‘living together agreement’. This will essentially outline the rights and obligations of each partner while living together. A ‘declaration of trust’ can also be made which will outline how you share your property.
Separation rights of cohabiting couples (Common Law marriage)
Since cohabiting couples don’t have the same rights as those who are married, they don’t have the same legal protection either.
There are no automatic entitlements to make financial, capital, spousal or pension claims. This essentially means, unlike with a financial settlement for a divorce, separating cohabiting couples don’t have a financial duty to support one another.
If one partner dies, there is also no expectation that the surviving partner will automatically inherit any assets. For one party to inherit these assets, it must be stated in the will of the partner who has died.
What happens if you cohabit after a divorce is finalised?
If you decide to cohabit with a new partner after your divorce, this does not mean that the financial agreements made during the divorce no longer apply. If the agreement was embodied within a court order, then the terms of the court order still apply.
From the courts perspective, just because you start cohabiting, it does not mean that your ex-spouse can automatically stop paying any kind of maintenance that was outlined by the court (unless of course the court order specified that the maintenance would cease upon cohabitation).
However, your ex-spouse could ask the court to reduce or stop spousal maintenance payments if your new living arrangements amount to a significant change in circumstances.
Will cohabiting impact child arrangements after a divorce?
Generally speaking, cohabiting after a divorce will not affect child arrangements, as long as the children aren’t harmed by the new living situation.
In England and Wales, the law doesn’t differentiate between married and cohabiting couples when deciding child arrangements and they will instead consider the best interests of the child as the child’s welfare is always the paramount consideration.
If there is a child arrangement in place, only the parent with the parental responsibility can change the arrangements, but if there are court orders in place, then these should be followed or an application made to court requesting that they be changed.
If the parent with the responsibility does not agree to any changes in the child arrangements, you will need to go to the court to apply for a new court order. However, how these new living circumstances will affect any children involved will be reviewed on a case by case basis.
Property rights of cohabiting couples after divorce
When you marry your partner, you’re automatically entitled to have a share of their assets. This means you will have some legal rights to a property, even if you’re not the legal owner.
However, if during the financial settlement it is agreed that the house is going to be sold, both parties have the right to live in the property until the sale is complete. This is if the property is owned in joint names or if the parties are still married, or if the court order allows both parties to remain living in the property.
If there has been a financial remedy order made as part of the divorce, then each parties rights will be as set out in the court order. If parties no longer wish the order to be valid because they have reconciled, then orders can only be set aside in very limited circumstances and expert legal advice should be sought.
If you are not happy with the living arrangements and it’s unlikely you will be able to ask the court to re-open the financial settlement, it’s a good idea to draw up a cohabitation agreement to protect your interests.
If you have never been married then there are limited property and financial rights if you separate from your partner but still choose to live together, despite proposals to reform this area of the law.
If you are currently cohabiting with your partner and want to make sure your best interests are protected, or you are going through a divorce and you and your new partner are thinking of cohabiting, contact our team to find out more on cohabitation contracts.
We’ll take the time to understand your current situation and help you with every step of the process, ensuring everyone receives the best possible outcome.