The week of 27 November to 1 December 2023 marks Resolution Awareness Week.
Organised by Resolution, a community of over 6,500 family professionals who work together to resolve family disputes amicably, constructively and for the benefit of the whole family, this year’s aim is to put pressure on the Government to address the legal disparities between those couples who are married and those that are not.
The unmarried cohabiting couple relationship is the fastest growing relationship status, with the number of marriages in decline. Despite this, however, there remains a large level of ignorance of the rights of a cohabitee, with many believing that there is a “common law man and wife” scenario.
Whilst an unmarried cohabiting couple’s relationship may not differ from that of married couples in terms of the emotional connection, living together and/or raising a family, the legal financial consequences following the relationship breaking down are very different.
For married couples, the starting presumption is one of sharing, whether this be capital, income and/or pensions. The level of sharing will vary depending on each couple’s unique circumstances.
For unmarried couples, however, there is no such presumption. There is no automatic entitlement to the sharing of finances upon separation, regardless of the duration of the relationship or the existence of children from that relationship.
A stark example that can be given is when one cohabitant decides that their 20 year relationship is at an end. The family home is owned in one party’s sole name and that party also has a private pension provision. There are two children of the relationship. For the party who is not the homeowner, they have no rights over the family home unless they can establish a beneficial interest; they have no recourse to maintenance for themselves, only child maintenance; they have no recourse to a share of the other’s pension; and they have no recourse to an order for a lump sum payment. The initial advice would therefore be that they are probably entitled to nothing; yet had they been married, they would have a claim for all of the above.
The family home is where most problems lie for cohabitees.
Joint Names: – If the property is owned in joint names, each party’s share will depend on whether they hold the property as joint tenants or tenants in common. If joint tenants, then each party will have a 50:50 share of the property. If tenants in common, then each party’s share will depend on what is said in the transfer document or a separate declaration of trust. If there is no stipulation, then there is a presumption that they will own in equal shares. A party who fails to specify unequal shares when they have put down a significant lump sum towards the purchase of the property whilst the other party put in nothing, may therefore end up being severely prejudiced and out of pocket when the relationship breaks down and the property is sold.
Sole Name: – If the property is owned in the sole name of one party only, the other party will need to show that they have a beneficial interest in the property by establishing either a Resulting Trust, a Constructive Trust or by Proprietary Estoppel. Outcomes are fact specific and vary widely from case to case.
An unmarried parent can apply for financial orders against the other parent for the benefit of the children by making an application to the court under Schedule 1 of the Children Act 1989. The Orders that can be made include a property adjustment order, a maintenance order and a lump sum order but these Orders are for the benefit of the child and are made when the child is aged under 18. Due to the cost involved in bringing such an application, many perceive it as a benefit only to wealthier families.
A further example of the disparities between married and unmarried couples can be given is where one partner dies and leaves no Will. In this instance, the surviving partner would be passed over under the rules on intestacy, with the deceased’s estate going first to any children, then the deceased’s parents, grandparents, other family members before passing to the Crown. There is no provision under the rules of Intestacy for a partner to inherit, leaving the surviving partner with nothing or needing to make an application under the Inheritance (Provision for Family and Dependants) Act 1975. In contrast, where one party to a marriage dies and leaves no Will, the surviving married spouse can rely on the rules of Intestacy, which provide a very clear hierarchy as to who is to inherit the deceased’s estate, with them in prime position.
For cohabitants who wish to rectify the disparity between them and their married counterparts, a Cohabitation Agreement can be entered into at the start of or during the relationship. For the Cohabitation Agreement to stand up in court should a dispute later arise, both parties would be required to receive independent legal advice on the terms of the agreement and some financial disclosure of each party’s assets and liabilities would be required to be provided and exchanged, along with a statement at the end of the agreement confirming that it was freely entered into and not as a result of duress.
Resolution members work daily to help families resolve disputes in a constructive and amicable way – an ethos of our Code of Practice. The purpose of Awareness Week is to put pressure on the Government to address the legal and financial disparities between married and unmarried couples following a relationship breakdown and to make people aware of those disparities and steps that can be taken to protect individuals and their family’s interests.
If you need advice on contact arrangements for your children, please contact the family law team on 01732 747900 or email [email protected]
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
