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There are several common misconceptions surrounding the rights of unmarried couples, who may cohabit for a considerable length of time and who make the choice to remain unmarried. In this blog, our expert family lawyers explain some of the common “myths” surrounding the law applicable to cohabitating couples in the event of relationship breakdown. An unmarried couple would be well advised to put additional measures in place, prior to the breakdown of a relationship, to protect their legal interests.
Myth number 1: “Common Law Marriage”
Research has shown that more than half of the UK population (51%) believe that the concept of a “Common Law Marriage” exists in UK law, and that their financial interests will be treated similar to a divorcing couple in the event of a relationship breakdown.
However, this is a worrying misconception. The law applicable to married couples separating, the Matrimonial Causes Act 1973, is a separate regime which only applies to married couples divorcing. Regardless of the length of cohabitation between an unmarried couple, they will not be protected by the same regime that applies to married couples and they will have to seek legal protection from elsewhere. The “myth” is therefore untrue.
Myth number 2: Financial consequences of relationship breakdown
Given that the Matrimonial Causes Act 1973 does not apply, the courts do not have the same range of powers available to assist a cohabiting couple. Furthermore, the range of remedies which are available may be more difficult to access.
For example, in the event of a divorce, the court has the power to make various financial orders to assist the parties with their transition into independent living. These orders include lump sum orders, maintenance orders (also referred to as ‘periodical payment orders’ or ‘spousal maintenance’), and property adjustment orders. The court’s aim is to divide assets between the couple fairly and in a way which meets both of their respective needs.
There is not an equivalent statute applicable to the breakdown of a cohabiting relationship. It could be possible to obtain similar remedies under Schedule 1 of the Children Act 1989, whereby the court have the power to order lump sum payments / periodical payments / property adjustments, but this would be within the framework of benefiting the child concerned and not the adult. There is a greater litigation risk involved in making these applications, and they are much less routine in comparison to applications for financial relief within divorce proceedings. It will also not be of assistance to cohabiting couples who do not have children.
It may be that cohabiting couples want to set out for themselves what will happen in the event of relationship breakdown, without having to navigate the complexities of the legal framework upon separation. It is growing more common for parties to enter into “separation agreements” or “cohabitation agreements” which will set out what will happen in the event of relationship breakdown. The agreement would operate under the normal rules of contract and would only need court intervention if one parties sought to retract from the agreement. If both parties agree to what financial provision should be made, it could avoid the need for litigation later down the line.
Both parties would be well advised to seek independent legal advice prior to signing a separation agreement.
Myth number 3: Property Rights
If you are not the legal owner of the property that you have been cohabiting in, there is no automatic legal right for you to stay in occupation of the home following the relationship breakdown. The legal owner would be entitled to give you reasonable notice to vacate the property; unless you can establish legal protection via another means.
For example, it may be possible for you to establish an equitable right in the property under the laws of trusts (for example, if you contributed towards the purchase price of the home, you could be able to establish that a resulting trust has arisen proportionate to the contribution that you made). If you wish to argue that the equitable ownership of the property differs from the legal ownership, it is likely to require lengthy court proceedings and possibly high litigation risk.
This can be contrasted quite starkly with the position for married couples- whereby the former matrimonial home is almost always available for division between the parties regardless of it being kept in one parties sole legal ownership.
Therefore cohabiting couples would be well advised to consider how they own the property at the outset of their relationship and whether owning the property as joint owners is a more accurate reflection of how they wish the property to be divided later down the line. This will put parties on more equal footing in the event of relationship breakdown.
Myth number 4: Intestacy rules and death of an unmarried partner
It is a common misconception that, should you die, your estate would automatically pass to your long-standing cohabiting partner with whom you have built your life with. However, the intestacy rules (which apply where a person dies without making a will), do not make provision for unmarried couples. Cohabiting couples need to be aware of this.
If you are unmarried and have children, the intestacy rules would mean that your estate passes to your children. However, if you do not have children, the estate would pass to your parents. If your parents are deceased, it would mean that your estate passes to your brothers and sisters.
This would be less than ideal if you had hoped your estate would pass to your partner. In this situation, your partner would be eligible to make a claim against your estate under the Inheritance (Provision for Dependants) Act 1975, but this is a complex area of law which would incur legal fees and potentially expensive litigation to establish.
To avoid this issue, a cohabiting couple would be well advised to make a will to set out how they wish for their estate to be handled upon death and to make provision for one another in a set of mirroring wills.
Myth number 5: Parental responsibility for children is automatic
The final myth in this blog concerns children born to unmarried parents. It might be common to think that a father automatically has Parental Responsibility when his child is born, but this is not the case. An unmarried father will need to acquire Parental Responsibility by either being named on the birth certificate for the child, or if not, entering into a Parental Responsibility Agreement with the mother or making a court application.
This contrasts with married fathers who will automatically acquire parental responsibility, by virtue of being married to the child’s mother at the time of birth.
If an unmarried father does not have parental responsibility, this does not remove his duty to maintain the child concerned. The mother can still make an application to the Child Maintenance Service for financial contributions to be made by the father.
Contact us
If you have any further questions regarding the impact of separating from a cohabiting or unmarried relationship, please do not hesitate to contact us. We have offices based in Wolverhampton and Cradley Heath and serve clients across the West Midlands and Black Country. If you complete our online enquiry form, a member of our team will contact you for an initial discussion.
Alternatively contact Mark Vandaele, Head of Family Law, on 01902 796930.
We are offering remote appointments due to the Covid19 outbreak.