What the law is not: A popular misconception is that, after a specified period of living together, a couple become “common law husband” and “common law wife” and that, if they then separate, the same laws apply to them as if they had actually been married to each other. This is not the law. There is no such thing as a common law husband or a common law wife. No matter how long an unmarried couple live together, they will not acquire the same rights and responsibilities as a married couple. This can have dramatic and unfair consequences, particularly on people who have been in a relationship for many years and who have given that relationship no less commitment than they would have done had it been a marriage.
Maintenance: As confirmed above, people who live together and then split up are not treated the same as a married couple whose relationship breaks down. A significant difference between the two types of relationship is that neither party to an unmarried relationship has any claim for financial support by way of maintenance for himself or herself from the other if the relationship breaks down. That being said, provision by way of child maintenance may be payable for a child of the family. For more information on resolving children issues click here.
Property: If a property is owned by only one of the cohabitants, then the other party will not automatically have any financial interest in it. However, it is open to the non-owner to argue that he or she has a financial interest. The onus will be on the non-owning party to prove that he or she has a financial entitlement in respect of the property.
If the property is held in joint names, then the net value of the property will be held by the parties as provided for in the title deeds. If the title deeds are clear as to the way in which it is intended that the property is to be owned, then the deeds will prevail.
If the title deeds are unclear, then extraneous evidence may be needed to establish the position. In order to decide what the outcome should be, the Court will try to determine what the parties intended, or should be taken to have intended, should be the position. The Court has the power to find that what was originally intended at the time the property was acquired has changed as a result of subsequent developments. Whether the Court might also infer or impute a change of intention in cases where the title deeds make the position clear is uncertain. At present this seems unlikely. (See our Joint Ownership of Property page, which deals with the issue of jointly owned property.) Any person who has a financial interest in a property, whether as a joint owner or as a person who is the non-owner but who can establish a financial interest, can apply to the Court for an order that the property be sold. The Court can make a variety of orders but, unlike in a divorce case, cannot actually change the ownership shares as part of an overall settlement of all financial and property issues. However, it may be possible to argue that the initially-stated shares have subsequently changed as a result of a change in the intentions of the owners.
In a case involving children, the Court does have the power to preserve the property as a home for children until they are grown up or until the parent looking after them is able to make alternative arrangements. This power is not widely used, and in any event would not result in the Court adjusting the ownership shares. Generally such an order would simply delay to a later date the ability of the parent who does not have day to day care of the children to realise his or her financial interest in the property.
Cohabitation Agreements: In addition to declaring the shares in which they own their home, a couple who are going to live together might want to consider entering into a Cohabitation Agreement. In addition to confirming the ownership of their home, the Agreement might cover a variety of other areas, such as:
- Ownership of assets held in sole names prior to relationship
- Ownership of assets acquired during the relationship
- Ownership of gifts received during the relationship
- Liability for utility bills, mortgage payments and other outgoings
- Liability for debts, such as overdraft, credit cards and bank loans, for example
- Ownership of vehicles
It would not be appropriate for the same firm of solicitors to advise both parties about the content and effect of the Agreement, due to potential conflicts of interests, so each should obtain separate legal advice before signing the Agreement.
The Future: At present, the distinction between married and unmarried relationships is clear cut and the remedies available on the breakdown of the relationship are much more restricted for the unmarried. However, the fact that unmarried relationships are so commonplace has led many to argue that the Court’s powers to deal with unmarried relationships generally should be made similar to those that exist for married couples. It is possible that the law relating to unmarried couples will undergo a major upheaval in the future, particularly as extended rights have been given to same sex couples who register their relationship as a Civil Partnership. There is at present no equivalent status for unmarried heterosexual couples.
Same Sex Relationships: When a same sex relationship registered under the Civil Partnerships Act 2004 is dissolved, the Court has significant discretion to deal with the financial and property aspects of the case. These discretionary powers are very similar to those which are available on divorce, and mean that the Court can adjust interests in property between the parties, and make various other Financial Orders with a view to achieving fairness between the parties. In cases in which this situation arises, we will provide more detailed advice as to the law and procedure.