Marilyn Stowe’s guide to the legal and emotional aspects of divorce and separation will be completely free to download on Amazon Kindle until Sunday 14 June.
Normally 99p, Divorce & Splitting Up: Advice from a Top Divorce Lawyer was written to provide everyday readers with a comprehensive and reliable guide to the many legal and emotional issues surrounding the end of a relationship in the post-legal aid era. The book is now in its second edition.
In this extract, Marilyn examines the legal realities behind cohabitation. Think you’re in a common law marriage? Think again!
Cohabitation remains a popular choice of relationship in Britain. The number of opposite sex cohabiting couple families has increased significantly, from 1.5 million in 1996 to 2.9 million in 2012. Over the same period, the number of dependent children living in these households has increased from 0.9 million to 1.8 million. I suspect the true numbers are far higher. I worry about the increasing numbers of children who are born to unmarried parents, because there is no body of “cohabitation law”.
Unfortunately my office is frequently consulted by an increasing number of cohabitees who have learned, to their great shock, that there is little that the law can do for them following the breakdown of their relationships. Gay couples entering into civil partnerships have the same rights as married couples. However couples who choose not to marry, or who may not be able to marry for a variety of reasons, have few automatic rights in law. In Scotland, there is sound cohabitation law. It does not give couples the same rights as married couples; however it does provide limited redress if the relationship between a cohabiting couple breaks down. You would be surprised to discover how favourably it compares to the law in England and Wales.
I was a member of the Advisory Group to the Law Commission, which was asked by Parliament to review this subject and submitted a sensible report in 2007. I have very strong views about what couples’ rights are at present, what they should be and what they may be in the future.
If you are cohabiting, you may find that your financial position is precarious if your relationship breaks down. Here is my advice.
What you need to remember:
1. Forget about “common law spouses”. One survey revealed that 51 per cent of people still believe in “common law marriage”, which gives some cohabitees the same rights as married couples. In reality, English law does not recognise such partnerships.
2. If you are a parent, clarify your parental responsibility. The father of a child born after 1 December 2003, if he is not married to the child’s mother, has no automatic presumption of paternity unless he has signed the birth certificate acknowledging paternity.
3. Forget about a financial settlement. When a cohabiting relationship breaks down, the financial implications for a non-earner who has little or no money can be very serious indeed. There is no automatic entitlement to maintenance or sharing in the wealth created during the relationship.
4. There is no property ownership claim unless you can prove your entitlement with hard evidence. The discretion a divorce court has does not exist in cohabitation breakdown. Don’t rely on a promise, especially if you make payments or regular contributions towards your shared home. Ensure that you have protected and registered that interest on the property’s title deeds, or you may face real trouble if you split. There are various permutations: sole ownership, equal ownership, part ownership, owning a share on a fixed basis or even on a floating basis in proportion to the contribution made by each party. Your solicitor can assist with this. Property ownership should be agreed by a “declaration of trust”, registered with the Land Registry. This will help you to avoid expensive litigation in the future.
5. No pension sharing. Pension sharing is available on divorce, but is not available if cohabiting partners split up, or if one partner dies.
6. No tax breaks. Married couples enjoy tax breaks on one party’s death or if the couple splits. This does not apply to cohabitation.
Download your free copy of Divorce & Splitting Up here.