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Family Matters - Unmarried couples have few rights

View profile for Mike Devlin
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This article was first published in the Wigan Observer on the 9th of October 2013

Q: I live with my long-term partner, we're quite happy as we are but where would we stand legally if we did separate?

 A: Over the past few years there has been a dramatic rise in the number of cohabiting couples.

Resolution, the body representing 6,500 family law professionals in England and Wales, has been campaigning for a change in the law to reflect this increasing demographic group. They believe that the current situation for people who live together in England and Wales, more often than not, creates injustice and hardship.

They recently stated that in 1996, there were 2.9 million people living with a partner in the UK. Today, this figure has almost doubled and stands at 5.6 million.

Many people believe that if they live with their partner and even go on to have children with them, they’re protected by the notion of ‘common law’ – but there’s no such thing as a ‘common law’ husband or wife. This means that unmarried couples have far less rights in respect to shared property and other assets than couples that are either married or in a civil partnership.

Under English and Welsh law, unmarried couples have no legal standing as such and are ultimately treated as separate individuals. Unmarried couples have no right to their partner’s property if their relationship breaks down although, if their property is bought in joint names, they are entitled to the share of it that they legally own. Property can be held in different ways but generally speaking in the absence of fraud or mistake, an individual’s beneficial interest will follow their legal interest. For example if a property is held as Tenants-in-Common in shares of 60% to 40%, that is how the money would be divided after a sale.

Problems can begin when there is a sole registered legal owner and there is a dispute as to whether a non-legal ‘owner’ may be able to assert a beneficial interest (or share) in the property. In these cases it will be necessary to persuade a court that there was an express agreement or understanding reached between the parties that the property was to be shared AND the non-legal owner acted in reliance upon the agreement to pay the mortgage, regular household bills, or a significant financial contribution or manual labour towards any home improvements of the property in order to ‘prove’ a share.

For those parents with children there is potential to apply for an interest in property but any ordered to be transferred in such applications usually returns to the other parent when the children become adults. Such applications can be expensive and legal aid would not generally be available to pursue one.

To avoid future problems anyone considering buying or moving into a property with their partner should consider asking their solicitor about entering into a Deed of Trust which clearly sets out each parties’ interest in the property. This could protect a party if making a larger contribution or unequal mortgage payments.

Making a Will is also very important if you are an unmarried couple living together. If one partner dies without a Will, the other would not necessarily be entitled to the estate even if children were involved, as the deceased partner’s immediate family would be treated as next of kin and would receive any inheritance.

A ‘Living Together’ or co-habitation agreement can also set out responsibility for such things as bills and who will own what possessions in the home. The time to do this is before you buy or move in together. It may save a lot of trouble and expense later.

People may feel put off seeking legal advice at the outset, but it really could be worth it in the long run and may prevent a more costly argument later or the difference in you getting nothing at all.

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