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The most popular day to get married this year in England and Wales in 18 August. However, over the past 20 years, the number of people getting married has fallen, with many couples opting to cohabit instead.
However, in the event that the relationship breaks down, cohabiting couples may not be aware that they have far less legal protection regarding finances and property than married couples do, and this is further complicated if there are children involved. There is no such thing as a “common law spouse.”
Cohabiting couples do not automatically have the same rights as married couples, because they are not legally recognised as a couple. This includes rights to a share in the family home and rights to ask for ongoing maintenance to support living expenses.
When a married couple divorces, their property is legally divided according to each person’s need, regardless of the legal ownership of the property. This is not the case for cohabiting couples. Legal title to property usually determines who owns the property. An unmarried partner has a significant hurdle to overcome to establish that she or he has a beneficial interest in the property under the Trusts of Land & Appointment of Trustees Act 1996 (TOLATA), and even then he or she would have to show that they had made a financial contribution towards the purchase price of the property, or towards the mortgage, or made significant improvements to the property which in turn had enhanced its value.
If unmarried partners have children together, very few people are aware that additional potential claims may be brought under Schedule 1 of the Children Act 1989 for the following:-
Cohabiting couples also have no automatic rights to the other’s inheritance, unless they are specifically named in the will. However, if you were being maintained by your partner immediately preceding his death, and you have not been provided for reasonably in the Will or he has died intestate, it may be possible to make a claim against the estate for financial support pursuant to the Inheritance (Provision for Family & Dependants) Act 1975.
There are certain steps which could be taken to protect your interest if you are unmarried.
You and your partner could enter into a cohabitation agreement. This will set out both party’s intentions for the couple’s property and finances (and support for the children if you have them together) if you split up.
Regarding property, the best way to secure your interest is to purchase the property in joint names so that you are named as the legal owner on the deeds. If you do not intend to own the property equally between you, you can enter into a declaration of trust which states in what shares you own the property.
To protect your estate against potential claims under the Inheritance Act, you could consider taking out life insurance with your partner as the beneficiary and creating a Will leaving reasonable financial provision for your partner’s needs to be provided from your estate upon death.
It is important to take steps early on to protect your interest your property and finances. At Myerson, our Family law team frequently advises unmarried couples on wealth protection issues and upon the merits of a potential claim against a former partner when a relationship breaks down.