It is estimated that in the UK there are in excess of 4 million couples who live together in a cohabiting relationship. This means that they are not married or in a civil partnership. More and more people are choosing to live together without having their relationship legally recognised. The consequence of this is that those couples have less rights and responsibilities towards each other if that relationship comes to an end or indeed if either party dies.
Many people who live together and who have been in a relationship for several years believe that they become common law husband and wife. Unfortunately this is not the case and believe it or not that concept has not existed in the law since 1753. Given the widespread misunderstanding about the rights of cohabitees the Government have considered giving those who have lived together for a certain period of time some of the rights enjoyed by those who are married or in civil partnerships. At this stage however the law has not changed.
Many people only realise their position once their relationship has broken down. There are ways of minimising and managing any disagreements in the event that the relationship breaks down and that is through a cohabitation agreement or living together agreement. These agreements govern the arrangements for those who live together as well as the arrangements in the event of their separation.
What are the potential consequences of separating from my partner?
If you do not have a living together agreement which determines what should happen in the event of your separation any of the following could apply;
- If you do not own the house in which you live or you do not own a share of the house in which you live you have no automatic right to stay if your partner asks you to leave.
- Besides child maintenance which is dealt with by the Child Support Agency (or through a private agreement) you have no right to receive maintenance for yourself from your ex- partner.
- If you live in a rented property together and the tenancy is in your ex partner’s sole name you have no right to stay if you are asked to leave.
- If the possessions within the property are owned by or were purchased by your ex partner you have no automatic right to a share of those possessions.
Are there any other consequences of living together without marrying or entering a civil partnership?
If your partner dies without leaving a Will (this is what is referred to as intestate) their possessions and assets will not pass to you but will pass under the intestacy rules to a member of his or her family. This could mean that you might lose your home.
If you are a father and you separate from the mother of your children you do not have parental responsibility for those children unless your name appears on the child’s birth certificate and this is only if the name was added after the 1 December 2003 or you have signed a Parental Responsibility Agreement or obtained a Court Order.
What can you do if you separate and there is no agreement in place?
If you own your property together you will need to investigate how the property is owned. If you own the property as ‘joint tenants’ then you each own all of the property in equal shares. The effect of this type of ownership is that if one of you were to die their share would automatically pass to you irrespective of any Will. You will need to make a decision about whether the property should be sold and the proceeds divided or whether one party would like to buy out the other’s interest. A jointly owned property can only be sold if both parties agree. In the event of a disagreement about the sale of the property one party may have to apply to the Court for an Order for sale. Where there are children of the relationship the application is likely to have less weight. The Court’s main consideration in that scenario would be the welfare of the children.
If you own the property as ‘tenants-in-common’ the property is owned by you both in either equal or unequal shares. Sometimes properties are owned in unequal shares because one party has contributed more money to the purchase price. You should have received advice about this from your Solicitor when you bought the property. A document called a Declaration of Trust may have been drawn up to record the different shares. The consequence of this type of ownership is that your share would not automatically pass to your partner on your death, instead it would pass to your closest blood relative unless you had prepared a Will stating who should receive your share. Again you would need to decide if the property is going to be sold and the proceeds divided in accordance with your respective shares or whether either of you buy out the other’s interest. In the absence of agreement about a sale an application to the Court maybe required as described above.
What happens if you don’t own the property?
The position becomes much trickier where the property is owned by one party. There are however ways to demonstrate that the party who on the face of it does not have any legal interest has in fact created an interest in the property. There are a few ways in which somebody might be able to show that they do in fact have a share of the property. This can be quite a complex area of trust law but there are broadly 3 ways in which an interest maybe created;
- Where you have expressly agreed between you that the property would be treated as a joint property. In this instance you are looking at what your intentions were. This can be quite difficult to prove if that intention was not in writing (and often it isn’t) and you are relying on statements made to each other at the beginning of the relationship.
- Where you have made direct financial contributions towards the property by either paying some money towards the purchase of the property for example you might have put some money towards the deposit or you have been paying towards the mortgage.
- Where you have relied on a promise which your partner has made to you. If for example you gave up a long lease on a property which would have given you security of housing for many years off the back of a promise that you would have a home with your partner for as long as you needed, the Court may decide that you have created an interest in your partner’s property.
It is not easy to demonstrate that you have created a ‘beneficial interest’ in a property that you do not legally own. The law relating to it is quite complex and the application to the Court can be an expensive route. If possible it is sensible to consider mediation or collaborative law as a way of resolving any disputes in the first place. That being said given that this area of the law can be complex it is wise to seek some legal advice so that you fully understand your position and the strengths and indeed weaknesses of your case. This may help to inform the mediation process and help you to come to an agreement that is fair and reasonable.
Where do children come into this?
Where there are children involved the parent who will have day-to-day care of the children can apply to the Child Maintenance Service for the parent without care to pay child maintenance. This can be agreed between the parties privately if they wish. A parent with care of the children can make an application under Schedule 1 of the Children Act 1989 for various types of financial support for the benefit of his or her children. Our article on Financial Provision for Children will give you more information.