Cohabitation
We have all heard the expression "common law" wife and many people believe that if you live with a partner for some time this gives you rights on the breakdown of the relationship either to continue living in the home you shared, regardless of who owns it, or to claim maintenance from your ex-partner. It can therefore be a shock to discover that this is not the case and there is no such thing as a "common law" wife. The reality is that there is an enormous difference between the legal rights you have in relation to property, finance and children if you are married or unmarried. This is also the case for same sex partnerships.
Cohabitation and children
If you are an unmarried father, then there is the possibility that you do not have parental responsibility for your child regardless of whether you live with the child's mother or not. The amount of commitment and involvement that you have in the child's life is irrelevant, although this will affect your application to obtain parental responsibility. You can find out more about this issue here.
Although you will not be entitled to maintenance from your partner or any lump sum payment when your relationship ends, this will not be the case for any children you have together. The parent who does not live with the child is under an obligation to pay maintenance and if they refuse to do so this is enforced through the Child Support Agency. In addition it can be possible to obtain a lump sum payment for your child through Schedule 1 of the Children Act 1989. Please contact us should you wish to discuss the possibility of making such an application.
If you own your property jointly with your partner and your relationship ends, one of you may want to sell the property whereas the other may wish to remain in the property with the children. It is possible to apply to court for an order that a property should be sold and the court will usually agree that jointly owned property should be sold to enable the proceeds to be divided. But if you have children together, the court may decide that you should be allowed to delay the sale until your children reach a certain age.
The law in relation to cohabiting
What happens to a cohabiting couple's property when the relationship ends? Put simply, nothing. Whoever was the legal owner during the relationship remains the legal owner, so you basically retain your property. If you bought something alone it is yours and if your partner bought something it is theirs. Problems can start if you bought something together as this will mean that you own the property jointly. If you paid different amounts for the property you will own it according to those shares, but of course this can be extremely difficult to prove.
This is particularly important in relation to the most major purchase that people make in their life - their home. If you are living with your partner in a house that they own and your relationship ends, you are likely to have no right to the property and will have to leave with nothing. This is the case even if you have lived together as man and wife for 10 or 20 years. This is a frightening prospect and you should consider taking steps to avoid this happening. Your partner may have assured you that you own the house with him, but if this was never put into writing it may be next to impossible to prove. Even if you bought the property together, unless you fully addressed the issue of how much you both own, this can cause a headache at the end of the relationship, at what is probably already an upsetting and difficult time.
If you jointly own your home with your partner then who gets what when you separate will depend whether you are "joint tenants" or "tenants in common" of the property. If you cannot answer this question then you must find out as soon as possible and your solicitor will be able to advise you what to do. If you are Joint Tenants then you both own the entire property. If one of you dies then the property will automatically pass into the other persons sole name regardless of whether you have split up or what your will says. If you are tenants in common then you each own a separate share of the property and you can specify what this share is. If you do not specify the shares the initial assumption will be that you own the property equally.
Your share will not automatically pass to the other person upon your death and you can leave your share in your will. In almost all cases a joint tenancy should be transferred to a tenancy in common at the end of a relationship. This is easy to achieve by formally notifying the other owner. Even if they do not acknowledge the notice it will still be effective.
Cohabitation agreements
One possible solution to many of these problems is for couples to sign a Cohabitation Agreement. This is similar to a Pre-nuptial agreement and states what the couple's intentions are regarding how the property should be divided should the relationship end. One difference between Pre-nuptial agreements and Cohabitation Agreements is that the courts can enforce Cohabitation Agreements, whereas Pre-nuptial agreements are not enforced in England and Wales, although they can act as evidence of a married couples original intentions. Cohabitation Agreements are viewed as binding contracts and as such there is no reason for a Court not to enforce them, whereas at the end of a marriage, a Judge has unlimited discretion in dividing the marital property.
It may seem rather negative and unromantic to consider what should happen when a relationship ends at the beginning. But it is important to remember that if you have decided not to get married, then you will generally only retain the property you own if you separate from your partner and that you could find yourself in a very vulnerable position.
Who owns what?
Should there be no written agreement regarding dividing your property and finances at the end of a cohabitation, any dispute will largely concern working out who owns what property or what each person's share is. This is either determined by paperwork, or by assessing each person's actual contribution and what the original intentions were.
Inevitably, if this is unclear then this can result in lengthy and complicated Court proceedings. For example, if your partner owns the property outright but you have contributed to the mortgage, then this could give you a share in the property. This will involve digging out mortgage statements to prove this, but it should be possible to prove that you are entitled to a share in the property. On the other hand, if your partner simply assured you that "I'll see you right", then at the end of the relationship he or she may conveniently forget this. Technically, such an assurance can create a trust, but obviously this could be difficult to prove. You may also be entitled to a share in the property if you have made extensive improvements to the property or renovated it. You partner may try to minimise or downplay your contribution, which may result in you receiving a reduced share of the property or even nothing at all.
It is far simpler to address this issue in advance, for example by agreeing with your partner what the shares of the property you both own and ensuring the correct documents are drawn up to reflect this. This can give you security and peace of mind as well as avoiding expensive legal proceedings.
No weddings but a funeral
An extremely important issue for you to consider if you are unmarried is what will happen to your property should you or your partner die. If you do not have a will then the intestacy rules will apply and your property will be left to your immediate relations. In this case your partner is likely to be left with nothing.
Also remember that your pension scheme may pay out a lump sum on your death and that you can nominate your partner to receive this - although make sure you remember to change this should your relationship end. But beyond this sum, your partner may not be able to receive any benefits that would otherwise be paid to a spouse. It is important to address this issue with your employer as soon as possible.
It is imperative that you don't forget to change your will when your relationship ends. The fact that you were no longer together when you died will not invalidate your will and your ex-partner could end up inheriting all your worldly goods even if your relationship has been over for years.
Same sex relationships
It is now possible for same sex partners to have their relationship legally recognised under the Civil Partnership Act. This means that same sex couples have the same right to choose whether to make their relationship "official" or simply to cohabitate. It you decide simply to live together, then the law is the same as for couples of the opposite sex.
The future?
You may be aware that there has been some discussion in recent years as to whether the law in this area should be changed to give cohabiting couples more rights at the end of their relationship. One argument is that it is unfair that you could live together with your partner for many years, but that when the relationship ends you could be left with nothing. An argument against this is that people can already chose to either marry or sign a Cohabitation agreement so by changes the law in this area the government would be limiting people's freedom to choose.
On 31st July 2007 The Law Commission published a report to Parliament entitled "Cohabitation: The Financial Consequences of Relationship Breakdown". The recommendation was that a new statutory scheme should apply to couples with children who had lived together. Although the recommendation was that it would be possible to opt out of this, it would give many couples some financial relief when the relationship ends. Parliament has not yet implemented these recommendations and it remains to be seen what the future holds in this area of law.
