Is your financial position and that of your children legally protected on breakdown of your relationship?
There is misconception amongst cohabiting couples that the law protects them to the same extent as married couples when their relationship breaks down. Unfortunately, this is not the case; cohabitants have fewer rights compared to the rights of married couples irrespective of how long the parties have cohabited. Another common misconception is that an unmarried partner can claim maintenance from the other partner on separation and that the relationship gives rise to a “common law marriage”.
If you are cohabiting or planning on doing so, it is important that you are aware of any legal rights relevant to you and perhaps what steps you can take to protect yours and your children’s financial position.
Rights over a property owned by your partner
If the property you both live in is owned solely owned by your partner, you would not be entitled to a share of the property and your partner can deal with the property as they see fit. However, you might feel that you should be entitled to a share of the property due to the substantial contribution you have made; for example, you have carried out renovations to improve the property or have contributed towards the mortgage or purchase of the property and your partner either promised or led you to believe you would benefit from the property. In such a case, you might be able to bring a civil claim within the Trusts of Land and Appointment of Trustees Act [known as TLATA 1996]. Our lawyers are experts in these types of claims and will be able to assist you.
What about the children of unmarried partners?
The law relating to, with whom the children shall live and how often the other parent shall spend time with the children is governed by the Children Act 1989 and you can find further information under our Children Law section. This law is applicable to all children irrespective of whether the parents are married. However, the law relating to financial provision for children of unmarried partners is restricted to Schedule 1 of the Children Act 1989. This means if you are unmarried, following relationship breakdown, you will not be able to claim property adjustment, periodical payments and lumpsum orders for your children under the Matrimonial Causes Act 1973, which is applicable to married couples on separation.
In addition to Child Maintenance, which any parent can claim through the Child Maintenance Service, you might also be able to make an application to court for financial provision for the benefit of the children within Schedule 1 of the Children Act 1989. Financial provision can include lump sum orders, periodical payments and property adjustment orders. These Schedule 1 Children Act applications would be more relevant to unmarried couples considering married couples can make similar applications within the Matrimonial Causes Act 1973, when dealing with finances within the matrimonial proceedings, on separation. Therefore, if you separate and the property is owned by your partner, who is the children’s father, you might be able to remain in the property with the children for as long as they remain dependent children. You might also be able to claim for additional regular payments if the children’s father’s earnings are above the scope of Child Maintenance.
If you are a home owner and would wish to protect your asset before cohabitation begins, it is advisable to think of entering into a cohabitation agreement to define how your assets will be dealt with on separation. You can also opt to adopt other practical measures to safeguard your property on separation, especially if you intend to purchase a property jointly or there is intention that your partner will contribute towards the deposit to purchase, the mortgage or carry out work to improve the property. It is important that your respective shares are defined clearly and even if you do not intend to enter into any agreement, you may find legal advice beneficial.