It may seem like we are inundated with weddings as the season begins, especially following the hiatus on big bashes imposed by the pandemic. However, recent statistics show that fewer and fewer couples are choosing to marry. With long-term cohabitation on the rise, this month I set out some considerations for those choosing not to wed, whether they are already living together or are considering taking the next step in their relationship.
It is a common misconception that if you cohabit with a partner, they become your ‘common law spouse’ which grants you the same legal rights as a married couple. In fact, if an unmarried couple separate, even after having spent their whole adult lives together, then in any dispute between them, the courts will only have recourse to their legal rights as owners of property or other assets, when considering asset ownership. The courts are not required to follow the “fairness principle” which is applied to divorcing married couples when deciding upon the division of assets which have accrued over their marriage, regardless of in whose name they are held. In addition, unlike with married couples, courts are not required to ensure that both parties future financial needs are met.
If a couple has no intention of getting married, but they intend to take steps which could disadvantage one party on a separation, then we strongly recommend that they enter into a Cohabitation Agreement to set out how their assets are owned and how they should be divided, should they separate. Some important discussion points relating to home ownership and access to children are detailed below.
Buying a home
Before you buy a home together, you should both consider and discuss how you want to own it. For example, you may be contributing different sums towards a deposit, and you may intend for one party to contribute the greater share to the monthly mortgage instalment because they are the higher earner (notwithstanding that from a Lender’s point of view, you are each jointly and severally liable for payment of the full amount due under the mortgage).
You can either decide that such differences should mean that you each own distinct and separate shares in the property that you buy, potentially in different amounts, i.e. recognising the differing contributions being made. Alternatively, you can decide that such differences would not have any effect and that you will own the property together, equally, in indivisible shares (which, if later separated, will mean you each own one-half share of the property).
If the legal ownership of the family home is registered in one party’s name only, the other party will have no claim to it unless they can prove that the couple had a common intention that the ownership was to be shared, or that they have contributed funds towards the property, such as contributing towards the deposit, the monthly mortgage payments, or undertaking and funding significant improvements to the property – not always the case where one party is a breadwinner and the other takes on a homemaker role.
Any responsible conveyancer should offer joint purchasers information about how property can be owned and should take detailed instructions from both purchasers. You should ensure that you are copied into all correspondence and ensure that the conveyancer confirms to you both, independently, your instructions regarding intended ownership, particularly if your partner is taking the lead in managing the conveyancing process on your joint behalf.
Under current conveyancing procedures, how ownership is recorded at the time of purchase will usually prove definitive later in the event of a dispute, unless parties enter into a further written formal agreement, altering the position, by way of a Deed.
You can read a more in-depth review of property ownership for cohabitees in my blog here.
The situation with funding support for children is also very different between unmarried cohabiting couples on the one hand, and married couples on the other. When a marriage breaks down, the party whose earning capacity was adversely affected by having primary responsibility for childcare, can claim spousal maintenance, if they cannot meet their financial needs. However, this does not apply to cohabitees, who would have no recourse for any additional financial support for themselves in the event of the relationship breaking down.
Child maintenance, that is payments to contribute towards the needs of the children, however, is payable regardless of the former status of the parents’ relationship. In the absence of agreement, child maintenance can be calculated in accordance with the criteria of the Child Maintenance Service, or, in limited circumstances, as determined by the court.
The rules for who has responsibility for decision making in respect of the children are also different. Unlike married fathers, who acquire Parental Responsibility automatically, a cohabiting father will only acquire Parental Responsibility for his child if he is registered on the birth certificate as the father. If this does not take place, then the father has to apply to the court for an order granting Parental Responsibility.
Based on the above, and given the limited legal protections afforded to cohabitees, it is especially important that they commit to reviewing together their respective financial positions and regularly revisit their expectations around financial support, at each point when they take decisions in their relationship. I strongly recommend that anyone considering living together (or who may already be cohabiting) to consider entering into a cohabitation agreement, to provide both parties with that protection.
Next month I will be looking at the difference for cohabitees on both pensions and the arrangements for a will. In the meantime, if you have any queries, please don’t hesitate to contact me, Katie Machin directly Katie.Machin@SilkFamilyLaw.co.uk, 0191 4065004.