What can I do to protect myself on separation if I am unmarried?
Nearly a quarter of couples living together are now unmarried and this is increasing each year.
However most cohabiting couples are unaware that if their relationship breaks down, their legal rights are very different to that of married couples.
According to a recent study, 46% of unmarried couples believe they have legal rights through being a 'common law' husband or wife. However, unfortunately this is a myth.
The reality is that separating cohabiting couples have no automatic claim to a share of the family home, pensions, maintenance payments and other assets as couples who were married would. Neither are they entitled to a fair and reasonable outcome under family law that divorcing couples benefit from.
Unmarried couples are instead forced to have their cases decided according to principles of property and trust law where the courts do not ask what is fair but instead concentrate on:
- Who owns the property?
- Who paid what at the time of the purchase and afterwards towards the mortgage, bills and renovations?
- What were the parties intentions about their interest in the property from any documents or conversations?
Unmarried couples can therefore be left in a vulnerable financial situation through no fault of their own.
Our family lawyers at Parfitt Cresswell are here to help every step of the way-whether to protect you when you start to live with a new partner, buy a property in your sole name or together and also if you separate.
Here are our top 5 tips of how to protect yourself as a cohabitee in the event of a separation:
1. Cohabitation Agreements: Set out your intentions in advance
Proactive couples can safeguard their interests by having a cohabitation agreement in place. This sets out property ownership, financial responsibilities e.g. for mortgage and bills and what they intend to happen on any future separation. It is similar to a prenuptial agreement for unmarried couples and whilst it is not necessarily fully legally binding in the event of any dispute, it is very useful evidence of both partners’ intentions and what they understood their rights were in respect of their properties and other assets.
Having evidence of intentions means that you are much less likely to have to go to Court after separation for a Judge to decide how a property is owned, who intended what and how the sale proceeds will be divided.
A cohabitation agreement can therefore be key to avoiding potential costly and time consuming disputes down the line.
2. Declaration of trust: be clear about property ownership from the start
If a cohabiting couple purchase a property in joint names, the legal presumption is that they own a 50% share of that property and should receive an equal share of the sale proceeds on any sale or separation. This can clearly be unfair to the partner who may have paid more towards the purchase price, say from using the sale proceeds of a property they had previously owned to pay as a deposit on this new home. It may not have been what they intended to happen and they would then have to try to argue against this presumption, saying that it was always intended that they had a greater share, despite it being in joint names. However this can be an uphill battle.
It is therefore advisable that your lawyer drafts a document called a Declaration of Trust which sets out your intentions from the time of the property purchase or if you haven’t done it then, later down the line. The Declaration of Trust can set out how you own the property based on your unequal contributions and this can then be relied on if you separate in saying how the sale proceeds will be divided.
3. Communicate openly and honestly about your intentions
Even if you don’t enter into a cohabitation agreement, do still make sure that you make time to discuss important issues with your partner. These include property ownership, financial arrangements for payment of the mortgage, bills and other expenses and your expectations for both living together and what would happen on separation. You can obtain legal advice about your rights on separation at any time during your relationship-you don’t have to leave it until you are separating/thinking about separating. Whilst potentially unromantic, if you know your legal position if you ever separate, there are then no surprises down the line and you can speak with your partner about changing the legal ownership of the family home or about payments for the property to protect yourself financially in advance.
4. Schedule 1 Children Act application : Claim for benefit of children as their carer
Even if you do not have any claims yourself to the family home, for example if it is in your partner’s sole name and you have not contributed towards it financially, if you have a child/children together, all is not lost.
You may be entitled to claim for their benefit under Schedule 1 of the Children Act as their carer for a property to house them and a lump sum say to furnish it or for moving costs. You would then be allowed to continue to live in the former family home or another property paid for by your ex-partner until the child /children finish secondary school or if agreed, university. At that point the property would then be transferred back to your ex-partner as the purpose of providing a home for the children has then ended. However, it gives you peace of mind that you will have a roof over your head for this crucial period and you can try to save for a deposit for the future in the meantime.
5. Seek legal advice at the outset of any separation
It is vital that you seek specialist family law advice at the outset of any separation or if not, as early as possible.
You can then be advised on your rights and responsibilities and what to do and not do so you can make informed decisions.
After speaking with you about the history of your relationship, your lawyer will prepare a chronology which sets out what was paid both at the time of the purchase and later on towards the bills, mortgage and renovations. You will be asked whether you did any renovations yourself which added value to your home e.g. did you project manage from afar or actually knock down walls with a sledgehammer yourself which directly added value?
Your lawyer will also ask you to think about conversations you had with your ex-partner about how the property was owned, what the effect of any financial contributions would be on the property ownership and also your intentions about what would happen if you separated.
You will then be advised on likely outcomes and be able to work together with your lawyer to achieve the best possible result.
The law in this area is complex, revolving around property and trust law. This means that it is vital to speak to a family law solicitor/legal expert if you are separating or thinking of doing so.
You can then be advised on your rights, potential claims and the best course of action based on your specific circumstances. Only then will you be in the best position possible to move forward in an informed and empowered way to resolve the financial issues.
If you fail to obtain legal advice, you may well lose out financially so the cost of instructing a lawyer pays for itself many times over.
Conclusion
In conclusion, the points to remember for cohabiting couples are:
- Cohabitation agreements offer invaluable protection and clarity. Think about entering into one particularly if one or both of you own a property.
- Property rights depend on individual circumstances and documented evidence. If you are purchasing a home jointly and paying more towards the purchase price, speak to your solicitor about a Declaration of Trust setting out your shares.
- You may be entitled to make claims to ensure your children are housed and looked after, after your separation even if you do not have any rights against assets yourself.
- Family solicitors/legal experts are best placed to draft and advise you on cohabitation agreements and if you are separating/thinking about separating, they can advise you on your rights, responsibilities and likely outcomes on your separation so you are informed about the best way forward for you and your family.
Parfitt Cresswell can help
Call us today on 0800 999 4437 or click on the link below to arrange your complimentary initial consultation with one of our legal experts.
