Cohabitation Agreements

If you are not married or in a civil partnership with your partner and you break up, how do you sort out your finances, your childcare arrangements and generally separate the life you led together?

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When married couples divorce, both people have a legal right to maintenance and their share of assets. The family courts have complete discretion to take all the circumstances and history of the relationship into account and decide on a fair division.

Cohabiting couples have no such rights, regardless of the number of years they have been together and whether they have children. When cohabiting, a couple’s individual property rights are the same as those of strangers or flatmates who have lived together.

Relationship break downs can be traumatic. Rather than being simpler because you 'don't have to get divorced', for cohabitees, dealing with your finances, assets and how it will affect your children can make the separation even more stressful and complicated.

We can advise you upon entering into a cohabitation agreement with your partner in order to detail your intentions at the outset or during a relationship and also guide you with what will happen should you unfortunately go your separate ways.

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Or, learn more about cohabitation agreements before getting in touch, in our blog post here.

Book a free appointment with our cohabitation solicitors

Frettens are pleased to offer a free initial appointment for all new clients. We recognise the importance for clients of deciding whether they can work with a particular solicitor and to find out more about the process and likely outcome. Our family lawyers offer positive, down to earth advice, and we hope that this initial meeting allows you the time to see this as well.

Contact us if you would like a free initial appointment with a member of our Family Team in Christchurch or Ringwood, with no obligation or charge. Give us a call on 01202 980416 or fill in our simple online enquiry form.

How our cohabitation solicitors can help

Personalised advice about your rights

Every family is different so we don’t take a one-size-fits-all approach to cohabitation advice. Whether you simply need advice about your rights or you need to take legal advice against your former partner, we are on hand to provide expert advice and sympathetic support.

If you have a cohabitation agreement in place, we can review this and help you negotiate an arrangement with your former partner based on it. So long as the agreement was freely entered into and you and your partner both received independent legal advice when you signed it, it is likely to be given significant weight during any legal proceedings.

However, with our assistance, you have the best possible chance of coming to an arrangement amicably without having to resort to court. Wherever appropriate, we can help you access forms of alternative dispute resolution, such as mediation and collaborative law, to help you work out an agreement.

Arranging finances upon separation

Sorting out finances when you are not married or in a civil partnership with your former partner can be very complex because there is no matrimonial ‘pot’ into which all your financial resources and obligations are pooled. Financial arrangements will involve separating out your assets and liabilities into ‘who owns what’ then negotiating a suitable arrangement wherever possible. You will need to take into consideration matters such as:

Any property you jointly own such as your home or joint bank accounts
Assets you own in your sole names
Any debts and financial obligations such as rent, mortgage, household bills and loans
Any children you have and their financial needs

We can help you sort through these issues and negotiate a positive outcome with your former partner wherever possible. Our team includes qualified collaborative lawyers Andrew Stynes and Simon Immins who are specially trained to help separating couples address these types of issues.

Taking legal action – TOLATA claims

Where an amicable agreement is not possible, we can provide advice about your rights and taking further legal action. Typically, unmarried couples cannot make financial claims for assets that belong to their partner. For example, you have no right to make a claim for maintenance or enforce an informal arrangement you previously made between yourselves.

However, if one partner solely owns a property and the other partner made contributions over the years (such as making home improvements) with the expectation that they had an interest in it and would receive some of its value, they may be able to claim a proportion of ownership under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

These types of claims are complex and usually turn on the facts of the individual case. Therefore, if you think you may be entitled to a share of your former partner’s property or your partner is trying to claim a share of your property, get in touch with our cohabitation solicitors for expert advice.

For further advice on TOLATA claims, read our blog post ‘TOLATA - A guide for unmarried couples who are separating’.

Arrangements for children and parental responsibility

Separation can be incredibly confusing and upsetting for children, regardless of whether their parents are married or not. We understand that the happiness of your children will be one of your primary concerns. We are here to provide sensitive, practical advice and put the needs of your children first whilst safeguarding your parental rights.

Parental responsibility

The first vital step towards making arrangements for children is ensuring that you have parental responsibility – the rights and responsibilities to contribute to your children’s upbringing. So long as you have parental responsibility you are entitled to have your say in key decisions, even if the children do not live with you most of the time. For example, if your former partner wants to change the children’s surname, they cannot do this without your permission (unless the court says otherwise).

The birth mother of a child will always automatically have parental responsibility. However, if you are the father or second parent and you are not married or in a civil partnership with the birth mother when the child was born, you will have had to take extra steps to get parental responsibility, such as put your name on the birth certificate.

We can help you work out whether you have parental responsibility and take steps to acquire it if you do not. This could include making a parental responsibility agreement with the birth mother or applying to court.

Residence, contact and decisions about upbringing

We can also assist with working out arrangements for children, including:

Where they should live and how much contact they should have with both parents
How much contact they should have with other family members, such as grandparents
Key decisions about their upbringing, such as where they should go to school or whether one parent can take them abroad

Usually, we are able to help parents come to a positive agreement out of court which we can then make legally binding by applying to court for a Consent Order. In the event that an agreement is not possible, we can advise on applying to court for a range of child-related orders, including:

Child Arrangement Orders
Prohibited Steps Orders
Specific Issue Orders

Child maintenance

Parents have a legal responsibility to financially provide for their children. We can provide practical advice about agreeing child maintenance payments or applying to the Child Maintenance Service for an independent calculation of child maintenance.

We can also advise unmarried fathers on their rights. For more information, read our blog post ‘What rights does an unmarried father have?’.

Book a free appointment with our cohabitation solicitors

What is ToLATA?

The Trusts of Land and Appointment of Trustees Act 1996 (known as TOLATA) gives Courts certain powers to resolve disputes about the ownership of property (or land).

A ToLATA claim can be issued:

To force the sale of land or property.
To reoccupy a former family home when an ex-partner refuses to leave.
By parents/grandparents wanting to recover their financial interest in the property.
To determine the share you each own.

Who occupies and who own the property?

There are three main types of application that can be made under ToLATA to resolve disputes about land. These are:

to order a sale of the property, enabling an owner to realise their financial interest,
to decide who is entitled to occupy, and
to decide the nature and extent of the ownership of a property owned by two or more people.

Taken together, these applications permit a court to decide who are the legal and beneficial owners of a property, and in what proportions.

There are complementary powers in ToLATA that allow a court to direct the owner of land to behave in a certain way. In disputes about co-ownership, these powers are used most frequently to require a co-owned property to be sold so that the proceeds can be divided.

What rights does an unmarried father have?

In short, an unmarried Father can have the same parental responsibility as a father married to the child’s mother.

Parental responsibility is defined in section 3 of the Children Act 1989 as being all the rights, duties, powers, responsibilities and authority which by law, a parent of a child has in relation to the child and his property.

Does an unmarried father have custody rights?

The father can apply to the court for a Child Arrangements Order. This will set out when the child is to spend time with/live with the father.

It is the courts view that it is in the child’s best interest to have contact with both parents (unless there are circumstances to the contrary). When a court determines any question with regard to a child, the child’s welfare shall be the court’s paramount consideration.

Although ‘custody’ is a commonly used term, the legal terms used by the courts are ‘live with and ‘time with’.

What is a declaration of trust?

A declaration of trust sets out each person’s contribution towards the purchase price of the property, how each person will be contributing towards the mortgage, the insurance, bills and any additional property maintenance that may be required.

The document will also make clear how the equity will be split if the property is sold or how the income will be split if the property is rented.

How can unmarried couples use a declaration of trust?

The declaration would set out 'who gets what' in the event of a break-up, meaning that a dispute could be avoided.

Contact us if you would like a free initial appointment with a member of our Family Team at our Christchurch office, with no obligation or charge. Call on 01202 499255 or fill out the form on the right.