Unmarried couples have no legal rights if they separate, so without an agreement, one of them could be left with nothing.
Jill Papworth, The Guardian, March 9 2013
Despite what many believe – and around one in four people living together think they have the same legal protection as married couples, according to research by the Co-op – there is no status in English law as a common-law spouse or partner.
The number of unmarried couples has doubled since the mid 1990s to nearly three million, while the number of children living with unmarried parents has risen from 0.9 million in 1996 to 1.8 million in 2012. In addition, there are an estimated 6,000 same-sex couples, not in a civil partnership, who have children.
However, virtually nothing has changed in how the law treats cohabiting couples and their property if they separate.
The law does not recognise in any meaningful way a living-together relationship outside marriage or civil partnership.
If a cohabiting relationship breaks down there is very little protection for the weaker partner, typically the woman, who often has children. As a result, some cohabiting families can find themselves facing real difficulties should they split up, particularly when children are involved.
In England and Wales, when married couples divorce or civil partners break up (known as dissolution rather than divorce), both parties have a legal right to maintenance and their share of assets, including property and inherited property. The judiciary has complete discretion under marital law to take all the circumstances and history of the relationship into account and decide on a fair division.
Cohabiting couples have no such rights, regardless of the number of years they have been together and whether they have children.
Say, for example, partner A moves into partner B’s property (partner B, whose name is on the deeds, is the sole owner), they live together and maybe have children. If they separate, whether after five, 10 or even 30 years, partner A has no right to personal maintenance from partner B even if she has always been supported financially.
Partner A also has no legal right to a share of the property, even if he or she has contributed to the mortgage or paid in other ways, such as staying at home to care for the children. So, unless partner B voluntarily agrees to a settlement, partner A could become homeless unless she can afford to go to court and even then there’s only a limited chance of success.
Any attempt to claim part of the property in such a case can be fraught with difficulties in a situation where there is ‘no-law,’ The Courts will be left trying to bring fairness using bits and pieces of other legislation on property, land and trust law but it is legally and technically complex. Therefore it can cost an enormous amount of money to fight it out.
Where cohabiting couples jointly own their family home, in English law the property will automatically be divided 50:50 – even if one partner contributed more to its purchase – unless they made a written legal agreement at the time of purchase saying in what proportions they own it. Again, if one partner wants to challenge this in court, it is likely to be costly and there is no guarantee they will win.
Despite the Law Commission making recommendations in 2007 that the rights of cohabiting partners upon separation should be increased, nothing much has changed. The current government indicated in 2011 that it had no plans to act on the proposed reforms.
As the law stands, the only solution for cohabiting couples who want legal protection should they split up is either to marry or enter a civil partnership, or to draw up a cohabitation agreement, otherwise known as a living together agreement or “no nup”.
What is a cohabition agreement?
It sets out who owns what and in what proportion and lets you document how you will split your property, its contents, personal belongings, savings and other assets should the relationship break down. It can also cover how you will support your children, over and above any legal requirements to maintain them, as well as how you would deal with bank accounts, debts, and joint purchases such as a car.
The agreement can also be used to set out how you and your partner will manage your day-to-day finances while you live together, such as how much each contributes to rent or mortgage and bills, and whether you will take out life insurance on each other.
How is the agreement put together?
Before seeing a lawyer, couples should agree on who owns what, how their assets should be divided in the event of a split and what they want from the agreement. One partner then pays their lawyer to get the agreement properly drawn up and a copy is sent to the other partner, who ideally should get their own lawyer to go through it. Once both parties are satisfied with the agreement, the document is signed and witnessed.
Is it legally binding?
Yes, so long as it is properly effected – which means both parties getting independent legal advice on the agreement. Then it will have full force of law. This is to avoid later allegations of undue duress such as, “my partner made me sign it”.
What will it cost?
This can vary and depends on the complexity of your affairs.
Abacus Solicitors has a specialist team who are able to advise and assist you in relation to cohabitation agreements or disputes. For an initial discussion or to make an appointment with Paul Ireland, call 01925 210999 or email p.ireland@abacus-law.co.uk