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Cohabitation Awareness Week: Know your rights
From 27 November to 1 December, it is Cohabitation Awareness Week. Resolution, a national organisation that campaigns for improvements to the family justice system, are raising awareness about the lack of legal protection on separation for cohabiting couples. They are also continuing their call for greater protection for couples in this type of relationship.
In the UK, there are about 3.3 million couples (one family in five) who choose to live together without marrying. Despite this being the fastest growing family type in the country, the legal position for unmarried couples on separation is far from widely understood.
The reality is that unmarried couples have very limited legal rights and responsibilities towards each other if the relationship breaks down. Consequently, the financially weaker party to the relationship is often left in a financially vulnerable position on separation.
Set out below is an outline of some of the common misconceptions and key elements of the legal position on the breakdown of a relationship. We have also shared our top 5 tips on what you can do to protect yourself.
The ‘common-law husband and wife’ myth
Unmarried couples do not acquire the same or similar rights as a married couple, however long they might live together.
Under English law, on divorce, spouses can apply to the court for income and capital orders for their own benefit. Without reason to do otherwise, the court will try and split assets equally and, if necessary, provide the financially weaker spouse with ongoing financial support.
Unmarried couples have no right to make similar applications, and are limited to claims over property and children. Partners are not automatically entitled to a share of the property or other assets on the basis that this might be the fair thing to do. Also, they are not entitled to financial support for their own sake.
Child related Claims
A parent can apply to the Child Maintenance Service (‘CMS’) for a child maintenance assessment. They can also apply to the court for a ‘top up’ maintenance order if the paying parent earns more than £156,000 gross per annum.
In some cases, the parent can also apply to the court for a lump sum and property provision for the children. This means that once the children reach the age of 18, the financial support will usually cease, and any property that has been provided reverts back to the parent that provided it. The other parent may then be left without a home or any financial support.
There is no automatic right to make a claim against property that is owned by your former partner or to claim a greater share in jointly owned property.
If you claim that the legal ownership of the property does not reflect the real situation, then the main issue for the court will be to work out what your shared intentions were. If you made no explicit statement of what you intended, the court will have the difficult task of looking at your conduct in relation to the property in order to establish your intention.
How to protect yourself – Top 5 Tips
1. Know your rights and seek legal advice
At the very least, find out about your legal rights on the breakdown of the relationship and what protective measures you can put in place. Obtain advice from a specialist Family Lawyer before it is too late!
2. Cohabitation Agreement
A couple can enter into a legally binding agreement to share assets in a particular way and provide financial support in the event of a relationship breakdown. This would provide some certainty. The financially weaker party will have the security and stability of knowing that they will not be left high and dry on separation. The financially stronger may obtain some protection against a future change in the law.
3. Property – Declaration of Trust
Before buying a property together, decide the shares in which you will own the property and expressly set out what they are in the deed of transfer or a declaration of trust.
If the property is being bought by one of you and it is not intended that the other will have an interest in it, then an agreement should be executed to evidence that this is the case.
4.Take out Life Insurance
If provision is not put in place to provide for the family on death then this will add to what is already an extremely upsetting and stressful time for the family.
5. Make a Will
As a former cohabitant, you have no automatic right to inherit from your partner’s estate on their death, even if there are children. It is therefore vital to make a Will.
If you need advice or assistance regarding this issue or any Family law matter, then please contact our Partner and Head of Divorce and Family Law, Tracey Dargan.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.