Some couples choose not to get married for various reasons but to live together, sharing a house, having children together and acquiring financial assets.
Should the relationship break down for any reason this can cause problems as to how to separate any property and assets fairly and to provide for any children. The idea of a ‘common law’ husband or wife is a myth and unmarried couples do not have the same protection that marriage brings in terms of financial support .
For any couples looking to move in together, we often recommend a Cohabitation Agreement which will cover how you manage finances whilst you live together and what should happen should the relationship breakdown. This could be particularly important for couples who may be bringing significant assets to the relationship or who may be due to inherit in the near future. One person may already own the property you both be living in, whilst the other person may be intending on paying all or part of any remaining mortgage, or it may have been verbally agreed that it would be a joint property but hasn’t be formally changed with the Land Registry. Unless ownership of the property has been made clear, it can be difficult to ensure that these elements are taken into account if the relationship breaks down. Whilst it may not seem the most romantic proposition, getting these details down in an agreement from the outset can save potential issues later on. Our team can draft this agreement for you to seek to ensure that assets are protected and financial arrangements are clear
Declaration of Trust
When purchasing a property as an unmarried couple, you could also arrange for a Declaration of Trust to be drawn up. We work closely with our Private Wealth team to prepare such a document to ensure that, for example, a deposit paid for the property by each person is protected. This is particularly important if one person is contributing significantly more to the purchase or if a parent is helping the couple to buy the property but would like their deposit to be protected.
Are Cohabitation Agreements Legally Binding?
Provided the couple have each had the opportunity to take legal advice and that there is no evidence of one person being forced into signing it, a Cohabitation Agreement should be legally binding. Generally, couples who have taken the steps to enter this type of agreement will follow it should the relationship breakdown however it is possible to resort to court should this not be the case.
Cohabitation Agreements are complex documents which need to be executed carefully to ensure they are valid in the event that the relationship breaks down. Spending some time and money in considering how to deal with your financial arrangements should your relationship break down, could save a significant amount of cost and heartache.
There may be claims you can make against a property you have lived in with your partner, depending on who owns it and/or the circumstances surrounding its acquisition. Such claims can be complex and as such it’s important to get advice about your particular situation to understand if there is any share you can claim in the property.
Whilst provisions differ to those made if a couple are married, there are circumstances where unmarried couples can apply to the court for financial support for any children from the relationship.
This support is much more limited than for divorcing couples but, if successful, will require the other party to provide for their children.
It is also possible to apply for child support via the Child Maintenance Service (CMS). There are exceptions to this such as if the paying parent is living overseas. There is also a cap in relation to income which can be dealt with via the CMS so some parents may need to apply to court instead, in the absence of an agreement.
Under Schedule 1 of the Children Act, a parent can apply for financial support for children. This provision can support with more than just regular maintenance (where the CMS cannot assist) and can include provision of a property until the children are no longer dependent. It can also include payment of specific items such as school fees but cannot be used to make a claim on a pension. These claims are however complex and so it’s important to take legal advice on your circumstances before making an application.
Arrangements for Children
For unmarried couples with children, parental responsibility may be a consideration. Mothers have automatic parental responsibility, whilst fathers can obtain parental responsibility by:
- Jointly registering the birth of the child with the mother
- Entering into a parental responsibility agreement with the mother
- Applying for a parental responsibility order from a court
- Marrying the mother
In the event you cannot agree the care arrangements for your children, we can discuss your options which might include attending mediation or making an application to the Court. For more information about mediation, please click here. You can also find more information about arrangements for children by clicking here.
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