Always the bridesmaid……..

More and more often now, people choose not to marry.  It may be due to the cost of marrying, a fundamental disbelief in the marriage contract or simply an event that has never appeared to be a necessity in the busy lives people lead now.  Our Head of Family Julie Slater-Williams looks at the implications on those who don’t marry and their financial situation, how the situation needs improving and how they can protect themselves.

There is often a misconception that unmarried couples become ‘common law’ spouses.  Sometimes people think that this happens after a certain duration of living together or upon the birth of children.  Family Lawyers know that that is not the case and we want to highlight the fact to all unmarried couples and particularly those with children. 

Regrettably, cohabitation law reform continues to take a back seat despite the Law Commission’s clear recommendations for reform in 2007 and notwithstanding calls for change from leading members of the judiciary over many years.

You need to know what the implications are, legally, for you as an unmarried partner. Here’s the run down:

There are No Automatic Rights

There is no strict legal definition of cohabitation under UK law, so there’s no entitlement to property or finances if you split up. There’s also no automatic entitlement to your partner’s Estate in the event of death, even if you have children with your deceased partner, unless the deceased had made a Will.  Keelys LLP have experts in the creation of Wills who can help.

Without a Will, You May Still be Entitled to Money

If your partner suddenly passes away, the last thing you want to worry about is money.  There’s a chance you won’t be entitled to what they leave behind if no Will has been drawn up.  There are exceptions where you may still be entitled to financial redress where you can prove that during the relationship you were financially dependent on your deceased partner.  Keelys LLP have the right people to help you with any such claim.

A Court Order May be Needed to Sell a Property

If you’re a joint owner of a property with your partner, but they’re reluctant to sell it, you may need to obtain a Court Order to facilitate this. The property must also be registered at the HM Land Registry.

Your Partner Can Access Joint Bank Accounts if You Split Up and You’re Only Liable for Debts in Your Own Name

If you have a joint bank account, you both have full access to it, even if only one person pays into it. So if you split up, you can both still legally access the funds in the account. Therefore, if you’re the sole person depositing money into a joint account and you separate from your partner, it’s a good idea to close the account as soon as possible.  Our family Lawyers can guide you through the immediate and long term implications of a separation.

No Automatic Parental Responsibility

If you move in with your partner and they have their own children from a previous relationship, you won’t automatically be granted Parental Responsibility or be named as their guardian.

Regulating the Cohabitation – how we can help:

There are ways that you can protect yourself and regulate the relationship you have with your partner.  These include:

  • Cohabitation Agreements.  Cohabitation Agreements are legally binding in England and Wales providing that the agreement is written correctly.
  • Being clear on how property is to be held jointly by way of a Declaration of Trust.
  • Making a Will.

The above regulation is the prevention, but what is the cure?

Assuming that you haven’t regulated the living arrangements by way of Will or cohabitation agreement and declaration of trust, we can still help to sort out the arrangements.  If the legislation was clearer it would help, but that isn’t to say that there is no hope.

Our litigation team can help with the ownership of property where it is owned by one partner and not the other – we can consider whether any trust has been established.

If you have children, we can look at how they may be provided for (and you as their carer).

In Re P (Child: Financial Provision), Thorpe LJ said (at para [49]) that ‘…the court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility the carer must have control of a budget that reflects her position and the position of the father, both social and financial. On the one hand she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly.’

A key point in that comment is ‘live lavishly’ and it has to be said, that most of the case law in this area relates to high worth individuals – the millionaires mostly. 

Still, there is schedule 1 of the Children’s act which allows a specific list of people to apply for orders for child maintenance and lump sums for the benefit of children, including potentially a carer’s allowance.

The CMS now applies to a child under the age of 20 who is in non-advanced (ie secondary) full-time education who lives with only one or neither of their parents.  This will be the most likely place for parents with main care of the child to go.  Sometimes however, parents may need to apply to the Court for increased maintenance or capital orders for their children.

The court has a wide discretion and the overall result achieved by orders under Sch 1 should be fair, just and reasonable taking into account all the circumstances and with a discretionary element as to the degree to which a child should be brought up in circumstances which bear some relationship to the paying parent.

We can discuss with our clients when such an application may be appropriate and consider how best to deal with the claim.  We are collaborative lawyers and are able to negotiate effectively for the benefit of our client’s without the need to apply to the Court.  In circumstances where it applies however, we can also apply to Court for an Order should you require one. 

Our View

The current legislation is not good enough for unmarried parents.  The purpose of Schedule 1 was to prevent discrimination to children born to non married parents.

The Act however seems to be setting up a 2 tier system where children of married parents have greater rights.  Effectively, children are being punished for the decisions their parents have taken.  Sch 1 was meant to resolve these, but these issues need to still be resolved. 

All of these issues bring into sharp focus the need for parliament to address the situation for unmarried couples.

If the relationship is long, and akin to a marriage with dependent children, rather than the public having to rely on interesting legal points in cases where the parties have the money to run them, and the uncertainty that comes with that, what needs to happen is for there to be an overhaul of cohabiting relationships.

Let us hope that reform is on the horizon

The Cohabitation Rights Bill (Last updated: 5 May 2021) could change the situation regarding the legal rights of unmarried couples if it ever becomes law.

It aims to establish a framework of rights and responsibilities for cohabitating couples who either have a dependent child or have been living together for a minimum of 3 years.

Key points include the right to:

  1. inherit their partner’s estate under the intestacy rules
  2. apply to a court for a financial settlement order upon the breakdown of the relationship
  3. have an insurable interest in the life of their partner

However, this is a private members’ bill and is therefore unlikely to progress beyond parliamentary debate.

Why unmarried couples living together should consider a cohabitation agreement

Since unmarried couples lack many of the rights and protections afforded to married couples, they should consider forming a cohabitation agreement.

This type of agreement allows unmarried couples living together to clearly set out their intentions regarding the division of finances and assets upon separation. Please feel free to contact us to discuss all of your cohabitation issues and we can help to protect you now!

Our family department is available to support and assist you.  Please contact us on 01543420000 or by email: jslater-williams@keelys.co.uk

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