We often meet unmarried couples in Mediation, who are surprised that they are treated differently in law from married couples. The concept of ‘common law’ partners is wide-spread. However is not actually legally recognised in the UK.
If you are not married you have far fewer legal obligations to each other when you decide to separate. I thought it might be helpful to lay out some of the differences in how the law treats married and unmarried couples when it comes to separation. This information applies to same sex and opposite sex couples. It does not apply to civil partnerships:
Unmarried couples can separate informally without the intervention of a court of law. However if agreement cannot be reached between separating partners the court does have power to make orders relating to the care of the children, or a financial settlement.
Both parents are assumed to have on-going financial responsibility for their children whether or not they are living with them. Since December 2003 unmarried fathers who are on their children’s birth certificate automatically have Parental Responsibility for them. This gives them the right to have a say in important decisions about the child’s life – i.e. schooling, religion and education. If the father is not named on the birth certificate and the couple is not married the father can apply for Parental Responsibility on separation. Similarly if the father is named on the birth certificate and the child was born before December 2003 the father would need to apply for Parental Responsibility.
Property – Joint Tenancy
If the unmarried couple owns a property it is crucially significant whether the couple owns it as Joint Tenants or as Tenants in Common. If the couple owns the property as Joint Tenants they are taken as owning the property equally irrespective of their contributions (i.e. towards deposit or mortgage).On death the property will go to the other party. If the property is owned as Tenants in Common, it is likely that there will be a declaration of trust defining the percentages in which they hold the property – usually based on their contributions to the purchase price. On death people can choose who to leave their part of the property to.
For properties bought after April 1998 the transfer document (TR1) should set out the parties’ interest – i.e. as Joint Tenants, as Tenants in Common in equal shares, or Tenants in common in unequal shares, and those shares are usually specified. If the property was bought prior to April 1998 you can tell by looking at office copy title entries (available from the Land Registry) how the couple hold their shares. If there is no evidence otherwise the assumption is that they are Joint Tenants in law and in equity
Property – Sole Ownership
If the property is owned in one parties name the only way the other party could establish any rights to the property would be by showing that they made a financial contribution to the purchase or upkeep of the property, or that there was an understanding between partners that both would have a share in the property if it was sold. A court could therefore decide the unnamed partner had a ‘beneficial interest’ in the property. This might mean they then have the right to live in the home, preventing the named owner from living there or getting a share of the proceeds if the property is sold. These are areas which can be very hard to prove and can lead to much argument between separating cohabitees.
Property – Children Involved
It can be possible where there are children living in a family home, even if the primary carer’s name isn’t on the property deeds that a court would order the transfer of the property to the primary carer if it was felt to be in the children’s best interests, but it would usually link this to a return of the named partner’s capital when the children grow up.
Property – Rented
If cohabitees have been renting a property together, the tenant with their name on the tenancy agreement will have the most right to stay in the property. It is possible to convert existing sole tenancies to joint tenancies if the sole tenant and the landlord agree. Unmarried partners can also get short-term rights to stay if they apply to court. A court can transfer a tenancy, whether it is a sole or joint tenancy.
There is usually no entitlement to each other’s pensions for unmarried couples (unless they are already being paid).
No spousal maintenance is payable between cohabiting couples. However a court can consider the position of a parent (usually the mother) who is the primary carer of the child and “should have control of a budget that reflects her position and the position of the father, both social and financial.”
How Can Mediation Help
In mediation we are often aiming to come up with a Memorandum of Understanding and an Open Financial Statement. For unmarried couples these can then be incorporated into a legally binding Separation Agreement which constitutes a full and final settlement between them.
As you can see the law is particularly complicated for unmarried couples and it can be easy to become involved in costly litigation.
However in mediation couples can make realistic, practical and fair settlements that do have regard to the law but that can focus on the practical reality of their life and their children’s lives in the future rather than the minutiae of the law.
If you would like further advice on separation when not married; please give us a call on 0117 924 3880.