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Unmarried and living together? How to protect your interests

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By Caroline Keeley

Cohabiting unmarried couples are the fastest growing family type in the UK, with more than three million people living in this type of relationship. Many unmarried couples do not realise that they do not have the same rights as married couples. There is no such thing as “common law” marriage. The sharing principle which is applied to divorcing couples is not available to cohabiting unmarried couples.

For unmarried couples dealing with their finances upon separation, assets are divided up according to strict property rights. There is no consideration for the partner who gave up their career to look after the family. If the family home is in your partner’s name, you may need to issue expensive and lengthy court proceedings under the Trusts of Law & Appointment of Trustees Act 1996 (TLATA) in an attempt to establish a beneficial interest in the property, which can only be established in certain fact specific circumstances. Once a beneficial interest is established further litigation will ensue to establish the extent of the potential interest. If the property is jointly owned, you may have arguments as to how much each partner is entitled to.

Likewise for cohabiting unmarried couples who have children, other than the minimum obligation of Child Maintenance, if the main caring parent needs additional financial support from the non-resident parent (for example, for provision of housing) further litigation may be required. This is by pursuing an application for financial provision of the children under Schedule 1 Children Act 1989.

In practice, a negotiated settlement is agreed between solicitors, or with the benefit of legal advice. Resolution, the national organisation for family lawyers who are committed to non-confrontational divorce, separation and other family problems are trying to raise awareness for the current lack of rights for cohabiting couples.

Cohabiting unmarried couples can attempt to address the uncertainty surrounding their lack of rights by entering into a Cohabitation Agreement and/or a Declaration of Trust. A Cohabitation Agreement is a contract between the parties and records arrangements between them. It establishes their rights and responsibilities in relation to a property that they live in or intend to live in, and also records what financial arrangements will be made should the cohabitation end.  A Cohabitation Agreement can avoid the cost and stress of litigation and provide some certainty for cohabiting couples should their relationship end. There is uncertainty surrounding whether terms of a Cohabitation Agreement will be enforced by the courts. There is no legislation governing Cohabitation Agreements, but it is essentially treated as a legal contract. The court will have to take into account other legislation that may apply, such as TLATA or the Children Act 1989 when considering enforceability. However, if entered into in the correct manner, taking account of certain legal principles and procedures, a Cohabitation Agreement can be very persuasive to a Court.

The Family Law team at TWM Solicitors can help advise you on all issues surrounding cohabitation for unmarried couples and how to protect your interests. If you have any queries please get in touch with a member of our team who will be pleased to assist you.

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