'I have been living with my partner for years and we never married but have two children together. What are our rights as cohabitants?' Family solicitor Naim Qureshi outlines the current legal situation for unmarried couples

Unfortunately as an unmarried couple, you do not share the same rights as two people who are legally wed. Married couples are protected under the Matrimonial Causes Act 1973, which deals with various orders for financial provision such as maintenance, lump sum payments and property division should the marriage break down - regardless of whether children are involved. If cohabitants split up, neither is entitled to make a financial claim against his/her partner unless - as in your case - there are children involved, but it gets complicated.

When kids are involved, it is possible to apply for financial provision under the Children Act 1989 through the courts. Such orders can include lump sums and transfers of property. They can also include maintenance or periodical payments, but in most cases these are dealt with through the Child Support Agency.

Married or not, there is an obligation on a parent to financially maintain his or her child - and this obligation is upheld by the Child Support Agency or CSA. The CSA assesses the non-resident parent of a child to work out how much maintenance they will be expected to pay to the resident parent. However, there is considerable debate at present about either revamping the CSA, or disbanding it altogether in favour of the court ( which already deals with residency and contact issues, but more on that later).

Family home
For most of us, our home is the largest asset that we will ever own so it's not terribly surprising that this is the area that causes the most difficulties when a relationship breaks down. Often, where an unmarried couple have cohabited for some time, principles of property law must be used to determine who actually owns the home, rather than who should own it as in the case of married couples.

Where one partner legally owns the home (as in, their name is registered on the legal title), two main legal concepts are used to determine whether the other partner (who doesn't 'own' the property) has a share in that property. These are: resulting trust and constructive trust.

• Resulting trust: here the courts take into account to what extent either or both parties have made financial contributions to the purchase the property (eg, mortgage repayments or refurbishment costs).
• Constructive trust: this is used where there have been no direct financial contributions. Under constructive trust the courts attempt to ascertain whether there was an express or informal agreement that both partners owned a share in the property.

How to protect yourself
As we have said, the number of unmarried couples living together in UK is increasing. But despite this, few couples consider entering into agreements to record what they have agreed, to regulate their cohabitation and to provide for the financial consequences should they split up. However, such a cohabitation agreement is no substitute for properly (and legally) recording the shares in which any property is owned (by way of a declaration of trust), making a will or nominating benefits under a life assurance policy or pension.

Children
When a couple break up, whether from marriage or not, The Children Act 1989 gives power to the court to decide on behalf of the child their residence arrangements (with whom the child should live) or contact arrangements (whether the child should have contact with the other parent and if so, when). These court orders often go into some depth, outlining the frequency of contact and even specifying arrangements for collection and return of the child/children to the resident parent or guardian. Incidentally, other people besides the mother and father of the child -for example, grandparents - can make applications for residence or contact.

So how does the court decide on the best arrangements for the child? They take into consideration a whole host of issues such as the wishes and feelings of the child, the child's physical, emotional and educational needs, the likely effect on the child of change to his or her circumstances, the child's age, sex, background and any other characteristics that the Court considers relevant, specifically any harm which the child has suffered or is at risk of suffering and the ability of each of the child's parents to care for the child. It is the child's welfare, not the parents, that is the court's paramount consideration.

The future
Because of the increase in cohabitation over recent years, there is now a growing concern over the lack of legal remedies for unmarried cohabiting couples and particularly the lack of solutions to relieve the potential financial hardship suffered by cohabitants who break up.

On 31 May 2006, the Law Commission (an independent body which is in charge of constantly reviewing the current laws and making proposals for its reform) published a consultation paper, 'Cohabitation - the financial consequences of relationship breakdown'. The paper focuses on capital provision where there are dependent children, capital and income provision on relationship breakdown and provision on the death of a partner. The consultation closed on 30 September 2006. It remains to be seen whether this will result in any law giving new rights and remedies for cohabitants. In the meantime, protect yourself, your partner and your children by legally recording who owns what, and what financial arrangements you can agree on should the worst come to the worst and you decide to split.

This information in this document is intended for general guidance only. It provides useful information in a concise form and is not a substitute for obtaining legal advice. If you would like advice specific to your circumstances, please contact us.

Naim Qureshi is a Partner at Child and Child. For further information please call (0)207 235 8000