Legal Rights of Cohabiting Couples with Children

26 March 2019

When a couple is living together without formal recognition of their relationship, this is called cohabiting. When a cohabiting couple with children separate, there are legal provisions for any children under the age of 18, but there are no legal protections for the parents. This means that one parent could find themselves with little to no financial provision as a result.

Cohabiting with Children

Cohabitation is the largest growing family type in the UK, with 3.3 million cohabiting couples recorded in 2017 – a figure that has more than doubled in the last decade. In the last 20 years, the percentage of dependent children living in cohabiting households has also more than doubled, rising from 7% in 1996 to 15% in 2016.

So what legal protection is offered to cohabiting couples with dependent children? In short, there are no specific legal provisions for cohabiting couples when it comes to separation or one person's death. When it comes to dividing the family home, this will fall to property law, and where children are involved, the Children Act 1989 will need to be relied upon.

Neither of these areas of law will make provisions for the needs of the parents themselves and they will not take into account non-financial contributions that either person has made to the relationship (such as giving up work to raise the children). This means that one parent could find themselves destitute as a result of their separation.

What about Common Law Marriage?

There is a common misconception that cohabiting couples are recognised by something called common law marriage. In reality, there is no such thing as common law marriage in England and Wales, meaning couples who are living together without any legal recognition of their relationship (such as a marriage or civil partnership) aren't protected by law.

Worryingly, many cohabitees aren't fully aware of their legal rights (or lack thereof) meaning that it's easy for couples to be caught out in the event of a separation.

The Children Act 1989

The Children Act 1989, as may be expected, is very much focused on the needs of the child. This is the law that will be applied to determine maintenance and care needs of the child. The Court will take the means of both parents into consideration here, but the purpose of maintenance payments is to ensure the resident parent can provide and care for the child, and this is ultimately as far as it goes. This means that once the maintenance needs of the child have been covered, there is unlikely to be much left over to support the parent.

What's more, if the Court rules that the resident parent should remain in the family home with the child, then this will only last until the youngest child reaches 18 years of age. At this point, if the family home is owned in the sole name of the other parent, it will revert to them, meaning the resident parent could then find themself homeless. Maintenance payments will also cease at this point, meaning that the resident parent could be left with nothing after giving up a career to care for the children.

How Can Cohabiting Parents Legally Protect Themselves?

If a cohabiting couple does not want to get married, but does want to put measures in place to legally protect themselves in the event of a separation, there are steps they can take. One option is to put a Cohabitation Agreement in place.

With a Cohabitation Agreement (also known as a Living Together Agreement) a couple can set out exactly how they will manage their money during the relationship, as well as what will happen in the event of their separation.

A Cohabitation Agreement will not interfere with any provisions made for children under the Children Act 1989, but it can help the couple to agree on how money matters should be dealt with between them.

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