An increasing number of couples are now choosing to live together without marrying.

Despite this trend, the Law still treats the relationship between married and unmarried couples very differently.

Do “common law marriages” exist ?

Contrary to popular belief, legally there is no such thing as a ‘common law marriage’.

Couples who have chosen to live together, rather than marry, often do not realise that they have fewer rights if they separate than their married counterparts, even where there are children.

The government has come under some pressure to pass legislation to protect unmarried couples but it has not yet done so, and at the moment, legislation does not appear likely. It is therefore necessary for couples already cohabiting or planning to cohabit, to take steps to safeguard their position.

Please click on video to hear Catherine Crabtree talk about the importance of a Will if you and your partner are unmarried.

What happens when it all goes wrong?

Currently, unmarried couples who separate do not have an automatic entitlement to each other’s property. It comes as a shock to many cohabiting couples who, on separating, find out how little they are protected by law. If the house in which you live together belongs to your partner, you do not automatically have the right to continue to live there or to claim a share of the value of the property after separation.

However, cohabiting couples can seek a declaration under the Trusts of Land and Appointment of Trustees Act 1996 to determine what their share of the property is, and whether it can be sold. The order is based on each person’s contributions to the purchase, their intentions, usually at the time that the property was purchased, or it may be based upon how they hold the property.

If the cohabiting couple have children, an application can be made under the Children Act 1989 for the house to be sold only when the children have grown up or for a lump sum to buy an alternative property to live in with the children. Often this lump sum has to be given back when the children are adult.

 Get independent legal advice

It is important when entering into any agreement that you and your partner do so freely and voluntarily, that both of you have the benefit of independent legal advice and that full disclosure has been made of all relevant financial and other circumstances.

Isn’t it a bit unromantic?

Quite possibly, but by being realistic at the outset could save you both a lot of emotional and financial problems in the future.

Couples should therefore:

  • Consider entering into a cohabitation contract at the outset, setting out how the property would be divided if they separated;
  • Each take their own legal advice;
  • Ensure that they own the property as ‘tenants in common’ so that each person has a specific share in the property which becomes part of the person’s estate on their death and does not automatically transfer to the other owner of the property.

What is a “cohabitation agreement”?

A cohabitation agreement is the best way of trying to ensure a secure future if things go wrong or if your partner dies or becomes seriously ill.

The cohabitation agreement will set out agreements for how to proceed if the relationship ends. This can avoid problems and legal costs if you do split up.

For example it may cover:

  • Termination of such agreed arrangements on death, marriage or separation;
  • An option to terminate or vary the agreement, for example when a couple have children;
  • Provision for any children and where they will live.

You should record how you hold your property and your contribution to its purchase.

In addition, a cohabitation agreement can also provide useful guidance for arrangements regarding:

  • Personal property
  • Liability for debt
  • Intentions in the event of death
  • Credit agreements
  • Ownership or provision of cars
  • Gifts
  • Living expenses
  • Provision of life insurance for each other
  • Pensions
  • Serious illness or incapacity

Establishing a beneficial interest in property

Many non-married couples may decide to purchase a property together and register both their names as legal owners on the title deeds.
If this is not the case, this excellent article by Lucy Bridger may be of considerable help.
Please click here to read the article.

How Thomas Dunton can help

Our team of accredited and experienced family lawyers are fully accustomed to dealing with the complex legal issues that can arise in these situations.

We are able to advise you on all legal aspects of the following:

  • Co-Habitation Agreements and Deeds of Trust
  • Child Contact and Residence
  • Financial provisions on separation
  • Financial provision for children (capital and income)
  • Mediation

For further advice please contact us on 01689 822554,
or email us at family@thomasdunton.co.uk

 

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