Unmarried Couples Disputes
The term cohabitation refers to couples who live together without marrying (or entering into a civil partnership). Currently, the number of cohabiting couples is on the increase. One of the consequences of this is that today over one third of babies are born outside of marriage.
There is a common misconception that cohabiting couples who have lived together for a certain period of time, enjoy the same rights as married couples. This is not the case. In law there is no such thing as a “common law husband and wife”. A couple who live together do not have anything like the same rights as a married couple. The result of this is that a person who cohabits with someone for 20 years or more, may have less rights than a person who has been married for 5 years or less.
An example of this would be where a woman in a relationship gives up a promising career to raise the children of the relationship. If the woman had been married, she might well have a claim for maintenance for herself, in addition to maintenance for their children. If she never married, she would have no such rights.
Another example is where the family home is in the man’s sole name. If the parties had been married, the Court would have a wide range of powers and could make various Orders in respect of the property, including the possibility of transferring the property into the wife’s sole name. If the couple have never been married and the property is held in the sole name of the man, it will be much harder (but not impossible) for the woman to show that she should have a share in the property.
As stated above, at this point in time, when a cohabiting couple separate, neither of the couple has the right to claim maintenance for themselves from the other cohabitee. There is however, still the right to claim financial support in respect of any of the children of the relationship. It is often thought that such claims for the children are limited to maintenance through the Child Support Agency. This is not the case. There are other financial claims that it may be possible to make through the Courts. An example of this is a claim for a lump sum on behalf of a child. There have been cases where a father of a child has been Ordered to pay a lump sum to the mother, to enable her to buy a car, because it is needed to take the children to school and to other activities.
Experience has shown that when a cohabiting couple have broken up, the main point of dispute has tended to be the family home. To avoid or at least to minimise the argument about the family home, it is important that from the outset of the purchase of the property, it is agreed as to how the property is to be owned by the couple.
A property can be purchased in the joint names of a couple, but not necessarily on the basis of each of them having a 50% share in the property. If one of the couple is making a significantly greater contribution towards the purchase price, the couple could agree that although the house is held in joint names, when the house is sold the net sale proceeds are to be divided in unequal terms eg 60:40 to reflect the additional contribution made by one party. It is important that any agreement concerning this is recorded in writing. The absence of a written agreement, leads to uncertainty and argument, that may result in court litigation.
A property can also be purchased in such a way that when one party dies, the survivor has the right to continue to live in the property during their lifetime or until certain other events in the future eg they co-habit with someone else or remarry, but the survivor does not acquire\inherit the ownership of the deceased persons interest in the property. This can be particularly useful when a couple start to cohabit, having had children from previous marriages\relationships and it is intended that their respective children should inherit their parent’s interest in the property.
For example, Mr Brown and Ms Smith start to cohabit. They each put the same amount of money into the property and they agree they should own the property 50:50. Mr Brown has 2 children from a previous marriage and Ms Smith has 1 child from a previous marriage. When Mr Brown dies, has set out that Ms Smith should continue to live in the property during her lifetime. On the death of Ms Smith, the net sale proceeds from the sale of the house are divided such that Mr Brown’s 2 children share in his 50% interest equally and Ms Smith’s 50% interest in the house passes solely to her daughter.
It should also be remembered that a cohabitee does not automatically inherit anything from their cohabitee’s estate upon death and therefore the making of a Will is essential. Cohabitee’s should also take financial advice in relation to obtaining suitable life insurance on each other’s life, to provide some measure of financial security in the event of the death of their cohabitee. Many pension schemes do not pay out “the widows or widowers” pension to a cohabitee, in the way they would if the parties had been married. Insurance may also be necessary to pay Inheritance tax, as the exemption a married spouse has in this regard, is not afforded to a cohabitee.
Advice from a family lawyer may help you identify any potential future difficulties. Some of these difficulties may be reduced or avoided altogether with the right advice. The right advice could include drawing up a “cohabitation agreement” which provides the framework of what has been agreed as to the rights and responsibilities of the couple, both during the relationship and upon the possible breakdown of the relationship or death.
The Family Law Team has a huge amount of experience in dealing with the many issues that can arise from the breakdown of a relationship of an unmarried couple.