In modern times it’s commonplace for couples to live together without ever marrying or entering into a civil partnership. Despite this, the law has not developed to give cohabiting couples the same rights as those who are married or live under a civil partnership.
Here, David Connor, who is a director at WHN specialising in family law, explores the potential issues for unmarried couples who live together and later decide to separate.
Varying legal rights
For divorcing couples, the court has the right to divide and redistribute the marital assets, including rearranging ownership of the matrimonial home and dividing possessions, to achieve a fair distribution upon separation.
Given the law does not treat those who are unmarried with the same rights as those who are, many couples who have lived together for a long time may not realise their assets aren’t afforded the same protection if their relationship breaks down in the future.
This can often leave people open to a costly and unfair distribution of assets, especially if they have contributed to the relationship in a way other than financially, perhaps by staying at home to look after the children or by assisting with their partner’s business.
The home and contents: possessions
The starting point for distributing assets in these cases is to look into whose name the property or other belongings – including possessions, cars and home contents – are actually in. The other party has no claim to these unless they can show an interest in the possession exists through a common intention to share it or through monetary contributions to the asset in question.
Couples who are still together may face similar issues if one partner dies, as an unmarried partner does not have an automatic right to inherit assets of the other on death if no Will exists.
Debts
Unmarried couples will only be jointly liable for debts taken out together and cannot be held responsible for the individual debts of the other party.
This means in cases where one party has taken out the majority of loans or debt in their name on the basis that the other party will jointly contribute, they may end up being left with the liability to pay these off in the event of a separation.
When unmarried couples buy a house together, it’s wise to take out life insurance on the other partner so that in the event of death, the mortgage is paid off.
Financial support and child issues
Whereas with married couples one party may need to make spousal maintenance payments to the other on divorce, in the case of unmarried couples there’s no liability to maintain the other on separation even if this produces unfairness or significant hardship.
There is, of course, the right to claim child maintenance and the Child Maintenance Agency will assess the income of the other parent and consider the number of nights the children stay within each parent to decide financial payments. Where there is an equal sharing of care and responsibilities, the Child Maintenance Agency will not make an order.
Issues about where the child or children shall live or how much time they spend with the other parent are dealt with in the same manner as married couples. Here the overriding issue is what is in the best interests of the child, while the outcome will also depend on who holds parental responsibility.
Do also keep in mind that while the mother of a child automatically holds parental responsibility, a father can only acquire it in the following situations:
- The parties are married at the time of birth or later marry
- There is a court order confirming the same on the father
- There is a Parental Responsibility Agreement registered at the court
- Both parties are names on the birth certificate.
A solution
Given the law hasn’t developed along with current social attitudes and modern relationships, it’s vital that couples who live together plan for the future and put appropriate protections in place.
Unmarried couples should have Wills to benefit each other on death, which is especially important if property is held together, as this will ensure the survivor has the right to assets from the estate of the other. Also consider if there will be any inheritance tax implications.
A cohabitation agreement is also advisable and will set out what should happen to property, assets, debts and other liabilities in the event of a separation.
It can reflect the contributions of each party and will help provide a degree of certainty of outcome in the event of separation. The document itself can be amended in the future to reflect any children born or as contributions change. If the couple later marry, then the matrimonial rules will apply.
David Connor is a director based at WHN’s Rawtenstall office. Specialising in all areas of family law, David represents individuals seeking to resolve family law matters either by agreement or through court proceedings where necessary. To contact David, call him on 01706 225621 or email david.connor@whnsolicitors.co.uk
