What are you entitled to?
Where parties have been living together and their relationship breaks down, many couples expect the courts to have the same powers to deal with property income and assets as married couples. Many people believe they acquire the legal status of “common law spouse”. Contrary to popular belief, however, English law does not recognise this concept. This means that where there is a relationship breakdown between cohabitants, they do not have the same legal remedies available to them as divorcing couples. For example, cohabitants are unable to make claims for maintenance or in respect of a pension. Claims are usually restricted to property. In contrast to divorce cases, the court does not have power to award a partner more than they are entitled to as a legal or beneficial owner e.g. if on purchase a couple chose to own their house equally and this is recorded in writing between them, the court will not generally award a partner more than that. If a house is bought jointly but ownership is not recorded in writing, the presumption is that ownership is equal but a partner who has contributed more towards the house e.g. towards the deposit, the mortgage or large renovations, could argue for more than half. If ownership is registered just in the name of one partner but the other partner also contributed towards the purchase, the mortgage or renovations, those contributions can, in certain circumstances, be taken into account in deciding the division of the property.
If there are children involved and a property is still needed as a family home, the court has power to delay the sale of the property until the children are finished in secondary education.
The legal process for a couple who have never married but have had children is more complicated than divorce in that it brings together both civil and family law and their rules and procedures.
If you are considering separation and you are concerned about your entitlement to a share of property that you live in or co-own, a meeting with a specialist solicitor is strongly recommended before you commit to a decision.
Cohabitation Contract (Living Together Agreement)
If you are contemplating living together, it is important that you consider entering into a cohabitation contract (also known as a living together agreement) to clarify ownership of assets, contributions and rights and responsibilities in the future.
A cohabitation agreement is a contract that you enter into. It is legally binding which means that if, on separation one of you decided to withdraw from the agreement, the other could pursue enforcement of the contract on the basis that the agreement had been broken.
Cohabitation agreements are important for couples who are making unequal contributions towards the purchase of their new home and they want to ensure that if they ever separated, those contributions would be taken into account on a division of the sale proceeds. Contributions might be coming from family members such as parents or grandparents and you want to ensure the return of those contributions on separation and/or sale.
Provision can be made for one partner to buy the other out and the agreement could set out the circumstances under which this would arise as well as set out what should happen. This would enable one partner to remain in the property which could be more important if there are children involved.
An agreement can be used to record who will be responsible for the payment of particular outgoings such as the mortgage and the utility bills. It can also be used to set out in what proportions each will contribute towards the cost of repairs, improvements and renovation to the property until its sale.
If the relationship breaks down and one partner moves out before the other, an agreement can set out the responsibility of both towards payment of the mortgage and the bills.
Thinking about the legal and practical arrangements of living together at the start of cohabitation can avoid awkward and unpleasant conversations or worse, expensive litigation at the point of separation. It is an opportunity for you, as a couple to confront and discuss what would otherwise be difficult issues. Many couples have reported that a living together agreement actually improves communication between them and enhances their relationship because they have to be honest and forthright with each other before making the legal commitment to buy a home together. It also gives a couple an opportunity to plan for the future and to share feelings about having children together.
We appreciate that anticipating and pre-empting problems which could occur at the end of a relationship, when this is the furthest thing from your mind, can be difficult but drawing up such an agreement to regularise what will happen in this event can avoid substantial legal wrangling in the event that the relationship breaks down.
Getting married and pre-nuptial agreements
When you are excitedly planning your wedding, making financial provision in case you separate is likely to be the furthest thing on your mind. However, if you are anxious to protect income and assets you have worked hard to build up or money or assets gifted from family you may want to consider committing to a pre-nuptial or pre-marital agreement that will clarify ownership of assets and make provision for what should happen to assets and income on separation/divorce.
Whilst the Courts in England and Wales are not legally bound to apply the terms of a pre-marital agreement on divorce, these agreements are increasingly being taken into account on divorce provided a court is satisfied that the agreement is fair, a couple understood what they were entering into and they have been frank and honest with each other about what they have in terms of income and capital.
Pre-marital agreements are also important if you want to protect an inheritance that you have received pre-marriage or you expect to receive during the marriage that you wish to ring fence from the marital assets. Agreements can be very useful in second marriages when one or both parties have come to the relationship with their own assets and/or income and they want to ensure that capital is protected for the benefit of any children to a first marriage.
Thinking about the legal and practical arrangements going into a marriage can avoid awkward and unpleasant conversations or worse, expensive litigation at the point of separation. It is an opportunity for you, as a couple, to confront and discuss what would otherwise be difficult issues. Many couples have reported that a pre-marital agreement actually improves communication between them and enhances their relationship because they have to be honest and forthright with each other before marriage. It also gives a couple an opportunity to plan for the future, to share feelings about having children together and to discuss provisions and arrangements they would like made for their children in the event of separation.
As uncomfortable as an agreement might be at the point of marriage, it could avoid substantial legal wrangling in the event of a break up which is kinder on you and your children both financially and practically.
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