Under current legislation, unmarried couples do not have the same legal protection as those that are married or in a civil partnership. It is not uncommon for clients to ask about ‘common law marriages’ but this concept is a myth and does not exist, no matter how long you have been in a relationship.
Unmarried couples, and in particular those who have children, are often surprised and upset by the fact they do not have the same rights as married couples upon separation.
At Rix & Kay we can advise you in relation to what rights you may have on separation and what your options are on the breakdown of a cohabiting relationship.
If you own a property jointly with your partner, or you have moved into a property in your partner’s sole name, you will need to take specific advice regarding your rights to that property.
Unlike those in a marriage or civil partnership, there is no specific law aimed at unmarried couples. The law that is applied is complex ‘trust’ law used to resolve issues regarding what share of a property a person owns.
In the absence of any direct agreement regarding the ownership of a property, such as a Deed of Trust, it is easy to be uncertain as to what you are entitled to.
If a property is jointly owned, one party may feel they are entitled to more than 50% of that property, for example if they paid a greater share of the purchase price. Alternatively, if one party moves into a property owned solely by their partner, they may feel they should have a share of that property, for example, if they have paid for improvements or they relied on promises made by their partner that the property was to be for them both.
If matters cannot be agreed, the Court can be asked to resolve:
- What share of a property each party is entitled to
- Whether the property should be sold
The Court will look at a number of factors, which may include whether there is any direct evidence of an agreement, the intentions of both parties, if promises were made that were relied on to another’s detriment, and the nature of any payments made to the property. What factors are relevant will depend on your particular circumstances.
There are separate provisions for couples who were engaged but did not marry, and specific advice will need to be taken if that is the case.
The good news is that insofar as child maintenance claims are concerned, unmarried couples have the same right as married couples to child support and can make a claim to the Child Maintenance Service under the child maintenance legislation.
You can consider making an application under Schedule 1 of the Children Act 1989 for financial provision for your children. This does not mean the financial provision will be extended to yourself, but in certain circumstances, the non-resident parent of the children may have to provide a home and additional income during the children’s minority.
In relation to the arrangements for children, whether or not their parents were married will have no impact at all.
If there are children, the mother will automatically have parental responsibility for them, whereas a father will only acquire parental responsibility if his name is placed on the child’s birth certificate or if the parents later marry. It is also possible for an unmarried father to acquire parental responsibility, either by parents adding the father’s name to the birth certificate, entering into a parental responsibility agreement, or by application to the Court for a Parental Responsibility Order. A married father automatically acquires parental responsibility in respect of any children of the relationship.
For several years now, there has been demand for the government to change the law in this area, but as at today’s date no such changes have been made.
Property claims are not straight forward as the law in this area is complicated and unless you have proper safeguards in place, you may find that you are seriously dis-advantaged upon separation, particularly if you are the main carer for the children.
At Rix and Kay we can assist in ensuring that you have protection, in the form of a Cohabitation Agreement, Deed of Trust and/or a Will to protect yourself in the event of separation from your partner.