The concept of a ‘common law spouse’ is not recognised under English Law. This means that often people mistakenly believe that the law offers cohabitating couples protection, especially when they have been in a relationship for a number of years.
However, the law treats married couples and cohabiting couples differently. It is important for cohabiting couples to understand the difference and, when starting a new relationship, to understand how to protect yourself.
This week we will be exploring topics relating to cohabitation and dispelling a few myths. We start with this article by Family Solicitor Elizabeth Dowler, where we explore some frequently asked questions surrounding cohabitation.
Starting a Cohabiting Relationship
I want to purchase a property with my new partner. How do I protect my investment?
When purchasing a property with a partner, it is important to think about how to protect the capital you are investing. This is particularly true when one party is in a significantly stronger financial position and therefore invests more.
There are a number of ways you can protect your capital. These include:
- Entering into a Declaration of Trust- A declaration of trust records how a property is owned in accordance with the contributions that each party makes to the original purchase price. It can also record how they intend to divide the proceeds of sale in the future.
- Entering into a Cohabitation Agreement- A cohabitation agreement is a bespoke document which can record a number of arrangements including what would happen if the relationship comes to an end. It can include how the equity in a property would be divided and how the other outgoings on the property would be met.
What are the advantages of entering into a Cohabitation Agreement?
They provide a clear written record of an agreement regarding what should happen financially during the relationship and in the event of breakdown. This can prevent the need for Court proceedings or lengthy negotiations in the future.
The agreements can be bespoke and can include a variety of factors such as:
- The distribution of joint assets;
- How debts, household outgoings and mortgages will be managed;
- How to deal with business interests; and
- What will happen to the home in the event of relationship breakdown.
Children of Unmarried Parents
My partner and I are not married. Do I have Parental Responsibility for my child?
A father will usually have parental responsibility for a child if they are listed on a birth certificate (for births after 1 December 2003). An unmarried father can also obtain parental responsibility by entering into a parental responsibility agreement with the mother or obtaining a parental responsibility order from the court.
How can I make sure that my partner and my children are protected in the event of my death?
It is important to draft a Will. If you do not have a Will, your partner will not automatically inherit your assets. In the short-term this can prove problematic as the assets will likely fall to your children in accordance with the rules of intestacy. The children will not receive the money immediately and will need to wait until they are 18.
This may cause problems for your partner who may need access to the inherited assets to provide for minor children.
How does the law treat unmarried couples who decide to separate?
To answer this question fully, it can be useful to consider how the law treats a married couple first. On the breakdown of a marriage, the Court will consider all of the assets, even if the asset is held by one party only. This will include capital, (such as property and savings) income and pensions. For longer marriages, the starting point is that all assets should be aggregated and divided in a fair and reasonable way with the starting point being equality. This means that the Court can order that properties are sold or transferred, spousal maintenance is paid and for pension sharing orders to be implemented.
When an unmarried couple separate, the Court does not have the power to divided and reallocate assets in the same way as for married couples. This means that you cannot claim for lump sum payments for yourself, claim spousal maintenance or ask the Court to award a pension share. Therefore, claims by cohabitants are limited to property law claims and certain claims for children.
My partner owns the property that we live in, what will happen if we separate?
The starting point will be to consider the ownership position at the Land Registry. If this has only been registered in one parties’ name then they will be considered to be the legal owner.
However, the Court can also look at the parties’ intentions as to the property ownership. It is possible to obtain a beneficial interest in a property even if you are not the legal owner. For instance, if you have paid towards the upkeep of the house, contributed to the mortgage or assisted with home improvements on the understanding that you would acquire an interest in a property, then it is possible to make a claim against the property.
These applications are usually very expensive and there is a significant burden on the party trying to prove that the ownership should be different than that which is recorded at the Land Registry.
What claims can be made for the children on relationship breakdown?
In additional to Child Maintenance, which can be enforced through the Child Maintenance Service, claims can be made under Schedule 1 of the Children Act 1989.
The legislation permits a parent to make a claim against the other for financial provision for the benefit of a child.
These claims can include:
- Transferring a property from one parent to the other- The idea behind this is that it provides the child with a suitable home until they are independent.
- Provision of a lump sum- This can be used towards meeting the capital needs of bring up a child such as furnishing a home or buying a suitable car to transport the child.
- Periodical payments- These are regular payments to meet the day-to-day needs of the child and may be used towards things such as education or training.
The law surrounding cohabitation remains complex and advice should be sought prior to entering into a cohabiting relationship, when changes occur in your relationship such as buying a new property and when a relationship ends.
At Mogers Drewett we have a team of solicitors specialising in all types of family matters. If you have any questions or would like to discuss your situation, then please get in touch with our Family team on 0800 533 5349.