What rights do I have when I split up from my partner if we’re not married?
The short answer is: far less than if you were married. Unmarried couples who separate may be able to make claims against property that they own jointly or that one partner owns solely. Unlike divorcing couples, they cannot receive a share of the other’s pension; receive a lump sum payment (except in limited circumstances relating to children); have property transferred to them; or receive spousal maintenance unless any of these things were agreed in writing. However, if the other party is not prepared to make a payment then the courts cannot assist.
But we’ve been together for years. Surely the court will recognise this?
Not necessarily. The concept of a common law spouse does not exist in English law (save for in exceptional circumstances). You could be living together for 30 years and the law will still treat you as cohabitants.
The court usually tries to do its best to help out the financially weaker partner but its powers are limited.
There is talk of the law being changed to reflect the increasing numbers of couples who choose not to marry but this is unlikely to happen any time soon. There is simply no political will to change things at the moment.
How does the court decide who gets what?
Broadly speaking, the court will look at the cohabiting couple’s shared intentions in relation to any property you own. It may be that there is written evidence showing how the couple agreed any property should be owned – for example. This could be in equal shares, in unequal shares; or one partner owning the property in its entirety. If there is no written evidence then the court will look at each party’s actions and intentions. It is the person who asserts that the shared intention was different to how the property is owned on paper who has to prove to the court that this was the case, which can be very difficult to do. Even if you contributed most of the deposit for the purchase of the property or you have paid all of the mortgage installments you would ordinarily only be entitled to half unless it was agreed otherwise, in writing.
Isn’t it simply about what’s fair?
Not to the same extent as if you were getting divorced. Put simply, if you divorce, the court’s guiding principle is fairness. But if you separate whilst cohabiting, the court’s concern is the couple’s shared intentions (which can produce seemingly unfair outcomes).
You may conclude that you will be worse off financially if you are not married when you separate as any claims you can bring against your former partner are much more limited than on divorce. Of course, it works both ways and you could be in a far stronger financial position if you are cohabiting and don’t have to share your assets.
What about the children?
The law does not distinguish between married and cohabiting couples when determining with whom the children should live on separation and how much time the children should spend with the other parent. This is determined by what is in the best interests of the children rather than being linked to the status of the relationship.
Likewise, the non-resident parent will have to pay child support regardless of whether he or she was married to the other parent. This is usually dealt with by the Child Maintenance Service and not the courts (except in limited circumstances).
The court can make additional financial provision for the parent who has care of the child but this is unusual and only applies when the non-resident parent is wealthy. Even then, the provision is based on the parent’s role as the child’s carer and does not seek to share the assets as is the case with divorcing couples. The purpose of this provision is to ensure the child or children’s needs are met rather than for the benefit of the cohabitee and so this would almost always come to an end when the child is no longer a minor.
What does it cost in terms of legal fees?
It depends on what issues are in dispute and how long matters take to resolve. It is important to bear in mind that (unlike with divorce cases) the loser pays the winner’s costs at the end of any court proceedings. This means that in the event of loosing, you would not only have to pay your own legal fees but also your ex-partner’s. It is crucial therefore to have early expert input from a solicitor who specialises in this area of law. He or she can advise you on whether you have a claim before you embark on any litigation and both incur more costs and potentially expose yourself to paying your ex-partner’s costs too.
Are cohabitation agreements legally binding?
Yes, so long as they have been correctly drafted and executed. The agreement will be signed as a deed and be legally binding. It is imperative to take legal advice and think carefully before entering into one.
Will you act for me or my partner too?
We can only act for you or your partner, but never both. We will advise the person who hires us, on what is in their best interests. Acting for both partners would be a clear conflict of interest.
What happens to the cohabitation agreement if we get married?
A cohabitation agreement can also serve as a prenup (or Pre-Civil Partnership Agreement), but you will need to explicitly agree that the terms will survive marriage, or that they will terminate on marriage. Sometimes people enter into a prenup at the same time as a cohabitation agreement. It’s advisable to speak to a lawyer about the best approach for your specific circumstances when it comes to prenuptial matters and how they relate to your cohabitation.
What does a cohabitation agreement cover? What are the types of Cohabitation dispute?
Our cohabitation solicitors at Stowe Family Law LLP specialise in advising cohabitees on their rights and cohabitation agreements, which can be made to cover post-separation disagreements and minimise or even eliminate unnecessary litigation over a number of matters, including:
• Legal shares in a property or business.
• How any family businesses will be managed.
• How debts, property and mortgage costs will be managed.
• The distribution of shared savings and assets such as property and other wealth.
• Taking out life insurance on each other.
• Temporary arrangements that may need establishing while sorting out your separation.
• Wills and provisions on death.
• Who gets the car or cars.
• Who gets custody of any family pets.
When should you make a cohabitation agreement?
There are many reasons and situations in which making a cohabitation agreement could be advisable, such as before buying a property or moving in together, before giving up a job to be a home maker for the main breadwinner or before having children.
Cohabitation agreements provide a lot more clarity and security for both parties entering into them, as they then each know where they stand should the relationship break down.
My partner wants to separate but doesn’t want to sell our house and won’t talk about it. Can you help?
Yes. Many such disputes can be resolved through negotiation. This is a much more cost effective way to deal with this kind of dispute. Some of these cases however do require an application to court to order the sale and make a ruling on how the proceeds will be divided. If your partner will not engage with you or solicitors then you may have no choice but to apply to the court as you cannot force him or her to sell the home without her agreement unless you have a court order.
What is a cohabitee?
A cohabitee is an individual living with a spouse in an unmarried relationship
The Cohabitation Rights Bill in the UK, which is currently being considered by Parliament, if passed, will offer more protection to long-term cohabitees in the UK. The Bill will define cohabitees as people ‘living together as a couple’ who meet the following additional conditions:
• They are members of the same household
• They are in a stable relationship
• There is financial support
• There is a sexual relationship
• There is public acknowledgement of that relationship
• Whether or not the parties have children
My ex-partner and I have been living together in rented accommodation – they wants me out, what should I do?
This will really depend upon a number of things. The first is whose name the tenancy agreement is in. If it is in your name or joint names then your partner cannot force you to leave as you have a right to live there under the terms of the agreement. If it is in her name then you may not be able to stay. You may need the landlord’s permission to live there and if you do not have that, you could be in difficulty. Furthermore, if your partner decided to leave as well and the tenancy is only in his or her name then this could create real problems. You should seek advice from a solicitor urgently if this is the case to understand what options you may have.
There are certain circumstances in which you could apply to the court for an order to enable you to remain living in the property. This order is known as an Occupation Order and regulates who can live in a property and other things, such as excluding someone else, who has to pay the rent etc. These kinds of applications are usually made if there has been domestic violence or if you had the primary care of any children which would leave you and them homeless. Such an Order is usually only made for a period of 6 months or sometimes 12 months and is really only a temporary resolution to the problem. It is really important to obtain legal advice tailored to your circumstances so that the best option for you can be considered.
If you have further questions then contact the firmand ask to speak to a specialist cohabitation solicitor.
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If you have further questions about how Stowe Family Law can help you with a cohabitation matter, then please get in touch.