Divorce Rights For Unmarried Couples

Divorce Rights for Unmarried Couples?

Monday, 11 June 2007 03:00

Rachel Buckley, Solicitor, warns co-habiting couples that they have little or no legal protection should their relationship breakdown.

Living together is no longer perceived to be "a sin" and while marriages decrease, the number of co-habiting couples is on the up. In the UK alone there are over two million unmarried couples, and this figure is predicted to grow from one in six to one in four by 2031.

The law for unmarried couples is currently under review by the Government. This is welcomed news as there are many common misconceptions surrounding this area. Six out of ten cohabiting couples wrongly believe they have the same rights as married couples should things go wrong; but there is no such thing as ‘common law marriage' and there are no clear laws about how assets should be split if the relationship breaks down. The reality is that a couple may share their lives, homes, children, cars and property, but they have little or no legal protection should their relationship breakdown. They do not have any obligation of financial support to each other even where people have given up a career to have children or to run the family home, and this can have disastrous consequences.

Unfortunately, a landmark ruling by the House of Lords in April did little to address the imbalance for the increasing numbers of unmarried couples buying homes together and bringing up families. It has serious implications for the Partner who stays home or is on a lesser income and a number of factors will be taken into account when looking at the true intentions of the cohabitees. Parties may now be forced into legal disputes over their property rights and may resort to costly court battles to argue for their respective shares. Ultimately they could lose the value of their assets in the legal costs spent in sorting out who gets what.

And it doesn't get any better if the property is in one person's name. The other partner can suddenly be homeless and have great difficulty claiming a share of their family home. For example, a person who lives with another as partners for 10 years and contributes to household bills:

Has no right to a share of the family home
Has no right to maintenance payments
May be deemed to have made themselves intentionally homeless and lose their right to council housing if the relationship ends

Property

If an unmarried couple separate and one or both of them own the house in which they have been living, a dispute may well arise as to what shares they should each receive. When it comes to property the law treats unmarried couples more like flatmates, it does not recognise people who live together. The law on this matter is largely based on contract and trust and will be affected by what agreement, if any, was made in writing between the couple at the time they bought the property, what contributions they have each made to the purchase price and to any mortgage payments or home improvements. It will also consider whether the property was intended to provide a home for any children who may be part of the family.

Solicitors and the Citizens Advice Bureau encourage all prospective co-habitees to set out how their assets should be divided if they ever separated. It is a good idea to consider entering into a contract with your partner to decide how money and property should be divided if you should separate because joint ownership is insufficient to ensure a simple 50/50 split of the property. Couples purchasing a home together who, are not married or civil partners, should state clearly, either on the Land Registry transfer form or on a separate deed, the shares in which they own their new home. These can be drawn up by a solicitor and can potentially save thousands of pounds and huge amounts of grief and bitterness.

Where a cohabiting couple live in a home in only one partner's name, the presumption is that the other partner is not entitled to a share at all. There can be exceptions to this if you have made significant financial contributions to the property, such as payment toward the deposit and mortgage, paying for work to be done on the property, or other significant household expenses. However, you will have to be able to prove your monetary contribution, if you want to try and seek financial recompense for any contribution you have made. It is important to keep details of any payments you make, and the court will look at the intention behind these payments, e.g. did you make the payments as a gift, a loan, or payment of rent, or for example, did your partner promise you a share in the property? If so you will need to explain how and when this promise was made, and if you can prove this then the court may force your partner to keep that promise and grant you an interest in the property. Even if there was no actual promise made, the Court may look at the behaviour and conduct of your partner and how you ran your affairs to see if it can conclude from that behaviour and conduct that you believed that you were entitled to a share of that property.

The court can decide how much your stake in the property is worth.
The court can make orders to restrict or exclude one partner from occupying the property.
The court can set conditions that the person remaining in the property pay all the bills and other expenses, or take over any responsibilities connected to the property.
The court can order one partner to pay compensation to the other partner who has to leave the home.
The court can order one partner to give up any payment or benefit connected to the property, for example rent.

Children

Property
If you cannot establish any interest in the property, but you have children, you may be able to apply on the children's behalf for a share of the property. This application can be made under the Children Act 1989. Orders can be made against your partner. This includes orders to transfer the property from your partner to you as the parent who is caring for the child or children. The property will be held by you for the benefit of the child / children or transferred to the child / children directly, this can include a transfer of a tenancy. (The children can only hold a property in their name if they are over 18.)

Parental Responsibility
Whereas for a married couple both parents automatically have parental responsibility for a child this is not the case for a couple that are not married. In such circumstances the mother always has parental responsibility but the father only has parental responsibility if certain conditions apply.

Financial Support
You can make a financial claim to the Child Support Agency (CSA) to help support your living costs if you are the children's main carer, but they do not deal with claims for maintenance for a stepchild and may not become involved in certain other circumstances. For more information on child support call their help line on 0845 713 3133.

Inheritance Rights

One in two people who co-habit believe that they have similar inheritance rights to those of married couples and it can come as a shock to find that the inheritance position of married and unmarried couples is vastly different. Two-thirds of cohabitants do not have a will, and without one property and assets at death are distributed by the law of Intestacy - where unless married or in a civil partnership, what is left over usually goes to children or other family members.

It is vitally important to have Wills drawn up in which your intentions are clearly expressed to avoid any uncertainty. It can happen however that one unmarried partner who has been dependent upon the other financially is left without adequate provision on the death of their partner and in some circumstances a claim can be made under the Inheritance (Provision for Family and Dependents) Act 1975.

Engaged Couples

There is one way in which an unmarried couple might have the same protection in financial disputes as married couples. Under the Law Reform (Miscellaneous Provisions) Act 1970 an engaged couple that separate will have the protection of any law that relates to the property rights of husband and wives. They can make an application to ask the court to decide on the division of the contents of the home or for the return of any contents removed by the other party. All they need to show is that there was an "agreement to marry" and that this agreement has been broken.

The Future

Resolution, (formerly known as The Solicitors Family Law Association), believes that the current law relating to unmarried families is "shambolic". Together with The Law Commission and The Law Society it has called for a new legal framework to protect vulnerable cohabitees. Amongst the proposals include recognition of the degree of commitment in an unmarried relationship. It is hoped that unmarried couples who have been together for two years should be given legal rights, including a share in the property, maintenance payments and even a share of their partner's pension when they split up. There will, however, be an opt-out clause whereby cohabitees can sign a contract setting out what will happen financially when they split up.

David Allison, chairman of Resolution, called for the reform to be introduced soon. "Cohabiting couples mistakenly believe they have rights as 'common law husband and wife'. In reality they have few rights. Disputes either go unresolved or they end up spending most of their resources going to Court. Urgent reform to the law is needed to end the enormous vulnerability of all live-together couples."

If you are concerned about any of the issues raised, please contact Rachel Buckley at Hartnell Chanot & Partners on 01392 421777.