Blog updated on the 22nd Nov 2017 – all information is current.
Cohabiting Couples who are separating – What protection do they have under the law?
More than 6 million people in Britain currently live in cohabiting relationships, and this is the fastest growing family type in UK.
There is now growing public pressure to increase protection for unmarried couples who are separating. Next week is Cohabitation Awareness Week (November 27th – 1st December 2017), so we thought this might be a good time to highlight this issue.
At the moment, despite the widespread belief that living together for a period of time, gives some rights, there are actually very few legal rights for unmarried couples, and there is definitely no legal concept of a ‘common law husband’ or ‘common law wife’ in UK law. In fact, it’s possible for a couple to live together for decades, to have children together, and on separation to walk away from the relationship without taking any responsibility for a former partner.
This can have a huge impact, particularly if one of the couple, usually the woman, has taken time out of work to look after children.
So what does this lack of protection this mean for unmarried couples who are separating?
Of course, 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.
Dividing Assets – Jointly Owned Property
For unmarried couples when it comes to dividing up capital assets, such as a jointly owned home, in general this will be governed by property law, rather than family law. This means that if a claim doesn’t succeed the losing party may have to pay the other party’s costs. Claims can be made under the Trusts of Land and Appointment of Trustees Act 1996 (known as ToLATA for short). A court can decide what proportion of the property each partner owns, and whether the property should be sold to release one partner’s share in it.
If the unmarried couple owns a property it is crucially significant whether they own 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. However, in many cases the TR1 will not have been completed. 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 that the property should be divided equally between them.
Dividing Assets – Property owned by one partner
If property is owned by one partner, then the other partner has no automatic entitlement to any share of the property, but it may be possible for them to make a case that the they have an interest in it. Ideally this would be in the form of a written agreement. Or if they can prove 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. In rare cases this might mean that they then have the right to live in the home, preventing the named owner from living there, or it might mean them getting a share of the proceeds if the property is sold. Inevitably these cases are very hard to prove, and can be very expensive and time consuming.
Property – Children Involved
The other circumstance when it could be possible for a partner whose name is not on the property deeds to claim an interest in a property is when there are children living in the property. Under Schedule 1 of the Children’s Act 1989 if there are children living in a family home, even if the primary carer’s name isn’t on the property deeds it is possible that court would order a lump sum payment, or 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, although it is possible to convert existing sole tenancies to joint tenancies if the sole tenant and the landlord agree. With a joint tenancy it only takes one person to bring the tenancy to an end, and once it is done the court cannot do anything to get the tenancy back, but a court can make an order stopping either partner from giving up a tenancy. Unmarried partners can also get short-term rights to stay if they apply to court. For council or housing association tenants a court can transfer a tenancy from one partner to another, whether it is a sole or joint tenancy. The court would have to weigh up financial and housing needs and the needs of any children before deciding whether to transfer a tenancy
There is usually no entitlement to each other’s pensions for unmarried couples (unless they are already being paid).
Arrangements for Children
When it comes to making arrangements for children, it is important that both parents have ‘Parental Responsibility’.
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.
This is the one area of law where the rights of unmarried parents are no different from married parents. Unmarried parents have the right to cliam child maintenance and unmarried parents are still liable for claims of Child Maintenance whether or not they have Parental Responsibility.
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 Mediation can 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.