Unmarried Couples

Over recent years, it has become increasingly popular for couples to live together without marrying. There are nearly four million couples cohabiting in England and Wales. Of these, many wrongly believe that they have a ’common law marriage’ and as such are afforded the same protection as married couples if they split up, when this is simply not the case.

There is no specific legislation which governs how finances are resolved on the breakdown of a cohabiting couple. Often, they find themselves relying upon the archaic laws of property and trust not specifically designed for their situation. Unfortunately, these laws are ill suited to deal with modern family living. The principles are applied strictly and the judge who determines the case has very little discretion, and has to follow the stringent rules regardless of what he or she considers the outcome to be fair.

As a result, cohabitees have significantly fewer rights than people who are married or who have formed a civil partnership and the breakdown of a relationship can be a financial disaster for a dependent cohabitee.

The legal position

If you share a home with your partner a lot will depend upon how the property is held. If the property is held in your partner’s sole name, and you do not have a Declaration of Trust, it can be difficult to recover anything from the property even if you have lived there for many years. The burden would be on the non-owner to establish why they are entitled to a share. Their success may depend on discussions and agreements that took place during the relationship, sometimes many years previously, and the financial contributions made. If you find yourself in this situation, you need an experienced solicitor who is up to date with current law to advise you and give you realistic advice of your chances of successfully bringing a claim against the property.

Even where property is owned in joint names, you may find your ex-partner is refusing to sell the property and there may be disputes as to how the property is to be dealt with now the relationship is over.

Disputes between former cohabitees are governed by the Civil Courts rather than the Family Courts. Due to the complexity of these disputes, it is important to seek advice from a specialist who has knowledge of the law in this area and the procedure for resolving claims.

Children of Cohabiting Families

If you have children, you may also need advice you upon maintenance provision, rights to occupy the property during the children’s minority and postpone any sale until that point, and other financial claims that may be brought for the benefit of the children, This might include, for example private school fees or lump sums for specific purposes. Sometimes, financial claims for the benefit of the children are brought concurrently with the property claims described above.

Cohabitation Agreements

If you think the lack of legal rights afforded to cohabitees are unfair, then you are not alone. There have been numerous calls on the government to legislate in this area, but the situation is unlikely to change quickly which means unmarried partners should consider regulating their finances by entering into a Cohabitation Agreement.

A Cohabitation Agreement is a legal contract and therefore is enforceable in law, provided certain criteria are met. The agreement can include:

The couple’s financial obligations towards each other including who pays what, both during the relationship and if the parties’ relationship breaks down and one person moves out;
Ownership of property and what will happen to this on separation .g. will one person have an option to purchase the others interest, or will the house be sold;
Details of how jointand sole bank accounts and investments should be treated if the relationship breaks down;
Ownership of other items such as a cars, pets, and the contents of the home;
How debts will be treated and who will be liable to repay them.

A Cohabitation Agreement can be drawn up at any stage of the relationship and can be amended or updated at different stages in life, for example, when thinking about having children, when buying a house, etc.

Although it may not be seen as a particularly romantic step, it is a sensible one. Obviously, you will both be hoping that the relationship will be successful, but the Agreement allows the two of you to set out what will happen in the unfortunate, and perhaps unlikely event, the relationship fail. By agreeing where each of you would stand, when there is a mutual concern and regard for each other, you can avoid stressful and costly disputes occurring later.

Again, specialist advice is required. As we deal with disputes at the end of the relationship, we are aware of the pitfalls couples need to try and avoid and can guide you on what needs to be included in the Cohabitation Agreement.

If you need assistance, contact one of our solicitors at family@sflsolicitors.co.uk or call 01785 336617 for expert legal advice.