Unmarried couples separating: is common law marriage a myth?

Often, I am asked by unmarried couples what their former partner is entitled to because they are in a 'common law marriage'.

There is no such thing as a common law marriage and therefore, couples living together do not have the same legal rights as a married couple.

Cohabiting couple families were the fastest-growing family type over the last decade. There was a significant increase statistically of 25.8% since 2008. There is an increasing trend to cohabit instead of marrying, or to cohabit before marriage.

This article addresses the common concerns arising from separation of unmarried couples .  

Who should stay in the home if a couple breaks up?

If the house you live in is owned by you both, you both have an equal right to remain in the property if your relationship breaks down, although it is not always easy to remain under the same roof, especially if you  have children.

In certain circumstances, if there is a dispute about who should remain living at the home, as an unmarried partner you can make an application for an order enabling you to remain in the property, usually on a temporary basis or for a set term. This is known as an occupation order.

If you are the sole owner of the property, only you have the right to remain in the property unless your partner secures an occupation order.

It is important to understand the background of the law applicable to unmarried couples, because your partner might be able to claim a beneficial interest in the property. If this is established, a beneficial interest may give a cohabiting partner, who doesn't own the property, rights to live in the property or they may establish a share in the property, or income if the property is rented out.

Establishing a share in the property

The first step  is to find out whether the property is owned jointly or not.

If the property is owned jointly, you will need to look at whether the property is owned as joint tenants or tenants in common.  If you are a joint tenant, you are considered to be joint and equal owners. If you are tenants in common, then you each own share in the property which does not necessarily mean it is a 50/50 split.

If you are trying to rely upon an agreement made between you both about the ownership of the property, for example, an unequal share of ownership, the onus is on you to show and produce the evidence about the agreement that you are saying should be taken into account. This is essential in trying to rely upon a beneficial interest.

If the property is owned in only one person's name, then you need to establish whether you have an express or beneficial interest in the home. An example of this, is to show there was a common intention between you that you would have an interest and you have acted in your detriment by relying on this intention. Another example is where you were led to believe by your partner that you had an interest and as a consequence of this you acted to their detriment.

It is therefore key that before buying a property together or putting money into a property you make sure you discuss your intentions and seek independent legal advice to protect your position should something happen in the future.

What provision is available if there are children involved when unmarried couples separate?

It is important to highlight that, under Schedule 1 of the Children Act 1989, the Family Court has the power to make financial provision for the benefit of children – an example of this is to meet their housing needs. When assessing the merit of this application, the court has a checklist of factors to consider relating to the income and assets of each parent and the needs and responsibilities they have. The  court will look at how best to provide for the welfare of the children from those resources.

It is important to remember that the share of award made under this area of law is made for the benefit of the children, and any money you receive from these orders is like a loan to you, not an outright award.

Inheritance and unmarried couples

A cohabiting couple do not have the same rights as a married couple in the event that  one of them dies. There is no automatic right to claim on the estate of your partner as an unmarried couple. It is therefore very important for you to obtain legal advice about your estate and I recommend that you prepare a will.

A will can deal with your estate and can also deal with arrangements of your children, for example, a guardian.

Information which will help you separate property if you split up

Here are my top tips for the essential information that separating unmarried couples may need to obtain:

• Can you get the conveyancing file from the solicitor that acted for you on your purchase? This will help analyse the ownership and what discussions were had regarding the purchase, for example, contributions made by both parties.

• Did you enter into a Declaration of Trust about the shares of ownership?

• What does the transfer document (TR1 document or old fashioned conveyance) say about the ownership upon purchase of your property?

• Did you and your former partner have any discussions about your intentions or was there any agreement about what would happen to the property? Have you relied upon this promise that was made to you?

• Have you made any mortgage payments or paid for any extensions to the property? We would suggest this is more than putting a new bath in and should be of significance adding value to the property. What evidence can you produce to show this?

Each case is dependent on its own facts specific to their circumstances. If you are in any doubt as to your position, please do not hesitate to contact me or another member of our family law team and we'll be happy to help you answer any questions you have.