Do cohabitees have the same rights as married couples?
The short answer is no.
Many people still believe in the myth of the ‘common law’ husband or wife, in that if they live together, unmarried, they will be treated as if they are married when they separate, but it’s not true.
If you live together, unmarried, and you split up, you’re not protected by the same laws as married couples and you may be completely surprised and dismayed to find out what could actually happen to various assets. Clearly it could have a devastating effect on your life if you think you’re entitled to half of everything – and you’re not!
What about our property?
Property, including the family home, is likely to be the biggest asset you and your partner have built up whilst living together.
If a married couple divorce, and have not agreed on a financial split, the court can impose a ‘fair and reasonable’ split of the value of the family home. This can include deciding what percentage each person owns, or transferring ownership completely to one person. It doesn’t matter if both haven’t contributed to the mortgage; for example where one was the breadwinner and one stayed at home to look after the house and/or children.
Property is also often used when dealing with pension off-setting agreements with married couples. It’s possible for one party to keep the whole of his or her pension, with the other party getting cash or property.
This is not the case if you are living together unmarried. The division of any property can be an extremely complex matter.
For example, if your partner owns your home in his or her sole name, you may not be entitled to anything from it unless you can prove that you have contributed directly towards its costs, such as providing the deposit on purchase, paying the mortgage instalments and/or funding significant home improvements. General upkeep such as painting and decorating is usually insufficient. If you haven’t made any relevant contribution, you may have to ask the court to declare you are entitled under the law of trusts to a share of the property based on what has been said or done or what was jointly intended irrespective of the actual property ownership.
If you own the property jointly, the way in which you bought it will affect the way it is split. If you own the property as joint tenants, either of you can apply to the court for it to be sold and the money shared equally. If you bought it as tenants in common, it’s likely that you’ll get a share of the property that reflects the extent to which you have contributed to it.
Pensions & other assets
Will I get a share of pensions and other assets?
If you’re not married, you can’t make a claim against your partner’s pensions or other assets if you split up. Married couples, however, have various options open to them in relation to pensions, which often form a substantial part of anyone’s assets. For example, a husband or wife may keep their entire pension by allowing their spouse to keep more of the cash or property they own (known as offsetting). They can also split the pension upon divorce and transfer an amount to a pension in the spouse’s name, or they can arrange for a portion of the pension to be given to the spouse upon retirement.
Can I claim maintenance?
Unlike spouses, you are not entitled to claim any maintenance for yourself from your former cohabitee if you separate.
However, whether you’re married or not, if you split up from your children’s other parent and the children remain living with you, the other parent is obliged to pay you maintenance towards the upkeep of the children. The Child Maintenance Service (CMS) replaced the Child Support Agency and assesses the amount that would need to be paid in your particular case. If your ex-partner is a high earner or if your children have special needs, you may be able to apply for ‘top-up’ maintenance through the court system. You can also apply for a ‘school fees order’ if your children are being privately educated.
You might be able to ask a court to make a housing provision for you if you’re looking after the children. This could be by way of securing a house or capital for the direct benefit of your children which ownership will be transferred back to your ex-partner when the children reach the age of 18.
How can I protect myself as a cohabitee?
We can help you by drafting a cohabitation agreement which can set out your intentions with regard to property, cash and belongings if you split up, as well as the arrangements for your children. A cohabitation agreement can be enforced by the courts as long as certain criteria are met, such as both parties having obtained independent legal advice.
Please click here to read more about cohabitation agreements.
Contact our family law experts now to find out how to protect yourself as a cohabitee or to make an appointment for a confidential meeting.
Sometimes brutally honest advice, which was needed at the time. Excellent skills in documenting my case and presented a great statement. Helped and advised to keep costs of the case down