Unmarried couples – where the law stands
It has become increasingly common for many couples to live together in a long term committed relationship without the benefits of marriage. Before entering into a co-habitation arrangement, it is crucial to be aware that the legal rights afforded to married couples are very different to those afforded to co-habitees.
It is a very common misconception that if a couple co-habit, they will automatically acquire certain rights by way of a “common law” marriage. There is in fact no such thing as a “common law” wife or husband, and this therefore has no basis in English law.
Unlike married parties, the law treats unmarried couples as two separate individuals. This means that any assets enjoyed by the couple, for example, bank accounts, savings investments etc will remain in the ownership of whoever’s name that asset is in. If those assets are held in joint names then upon separation they will generally be divided equally, unless there is clear, convincing and persuasive evidence that the parties agreed to something else.
If the couple owns a home together in joint names then again that asset will usually be divided equally between them, unless there is clear evidence that there was an agreement to the contrary. Upon separation, most commonly, one person will buy the other out of the property to the equivalent of half share of the equity, and will take on the outstanding mortgage. If this is not a viable option, then the property will simply have to be sold and the proceeds divided equally.
Often, one party will have already owned the home before the co-habiting relationship formed, or the property may have been purchased in one party’s name. In such a case, the starting point in resolving this situation is that the sole owner will retain full ownership upon separation. This arrangement brings about complexities when the non-owning partner has contributed financially to the property by means of mortgage payments, the purchase deposit, or paying for home improvements. There may be a formal or informal agreement between the couple that the property was intended to be jointly owned, despite the fact that the formalities of changing the property title were not attended to. This being the case, it will be up to the non-owning party, along with his/her solicitor, to prove that he/she is entitled to a share of the property.
Where there are children of the parties, upon separation, it is important to determine who the children will live with, and when they will have contact with the other parent. It goes without saying that it is important for the children to maintain contact with both parents, but in the cases of unmarried parents, particularly for fathers, the rights can be more complex. In any event, the parent with whom the children remain living is able to claim support for the children.
This is a very specialist area of law which requires the assistance of a family solicitor with experience of this type of situation.
Carol Robinson is a solicitor in the Family department at Barker Gotelee Solicitors.