Cohabiting couples are the fastest-growing type of family in UK – numbers have doubled in the last 20 years. However, cohabitation offers far less protection than marriage does, and the law has not caught up with the way modern families live today.
Under current law, it is possible to live with somebody for decades – and have children together – and to have no financial claims if the relationship breaks down. The idea of a ‘common law marriage’ with the financial protection marriage provides, is a myth.
Here we address the most commonly asked questions on the issue of cohabitation in the event of a relationship breakdown:
Q: What financial protection do I have if my partner and I live together but remain unmarried and we split up?
A: 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 owned jointly or that one person owns in their sole name – however, unlike divorcing couples, they cannot receive a share of the others’ 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. If the other party is not prepared to make a payment to assist the other financially, then the courts cannot assist.
Q: Surely the court will recognise it if we have been together for many years?
A: Not necessarily. As set out above, the concept of a common law spouse does not exist in English law. You could be living together for 25 years and irrespective of that, the law will still treat you as cohabitants. There are various campaigns underway to change the law to reflect the increasing numbers of couples who choose not to marry, but those changes have not yet been made.
Q: If my ex partner and I can’t agree how to split the property, how does the court decide who gets what?
A: Generally, the court will look at your shared intentions in relation to any property you own. It may be that there is written evidence showing how you agreed the property should be owned, for example. This could be in equal or unequal shares, or one person owning the property entirely. The court would look at each of your actions and intentions if there were no written evidence.
Q: But isn’t it simply about what is fair?
A: This is not true to the same extent as if you were divorcing. Simply put, if you divorce, the court’s guiding principle is fairness. If you separate whilst cohabiting, the court’s concern is the couple’s shared intentions.
Q: What about the children?
A: The law does not distinguish between married and cohabiting couples when making a decision as to who the children should live with if there is a separation – or how much time the children should spend with the other parent. These issues are determined by what is in the best interests of the children, rather than being linked to the status of the relationship. Likewise, the parent who does not have the children living with them will have to pay child maintenance, regardless of whether he or she was married to the other parent. Note: It is possible for the court to make additional financial provision for the parent who has the child or children living with them, but this is unusual and generally only applies when the parent who does not have the care of the children is wealthy.
Q: If my partner and I live together but are not married, how can we protect ourselves in the event we split up?
A: One option is to have a cohabitation agreement drawn up by a solicitor. This can set out things such as who owns what in what proportions, your future intentions for ownership, contributions being made to the household or property and the difference, if any, that it makes to ownership, and what is to happen if you separate.
To conclude, if you and your partner are not married or in a civil partnership, in reality you have very little legal protection if you split up. This is the case regardless of how long you have lived together, or how many children you may have together. It is therefore really, really important to consider how best to protect yourself and your assets.
If you have any questions about this issue or any other family related legal queries you can email me at scsmith@cozens-hardy.comor contact myself or one of my colleagues on 01603 625231.
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