The Law and Unmarried Couples: Where Do You Stand?

It perhaps comes as no surprise that the fastest growing type of family in the UK is the so-called “cohabiting couple,” a couple who choose to live together with or without children and who, crucially, are not married or in a civil partnership.

Over the years the legal significance of marriage has decreased. For many modern couples today, they may not believe in marriage, for personal reasons, for example, having witnessed first-hand marriage breakdown; they may find the concept of marriage itself an expensive and unnecessary financial matter; and, put simply, they may have other more important priorities – such as getting on the property ladder.

Notwithstanding these views, many cohabiting couples continue to believe that they have the same rights as married couples. However, they are badly mistaken and could find themselves at a serious disadvantage in the event of relationship breakdown when compared to partners who are married.

SO, WHAT EXACTLY IS THE DIFFERENCE IN THE LEGAL TREATMENT BETWEEN UNMARRIED COUPLES AND MARRIED COUPLES OR CIVIL PARTNERS?

Certain statutes give married and unmarried couples the same rights (e.g., Rent Act 1977, Family Law Act 1996) which is why there may be this continued myth and misconception of the “common law marriage.” Furthermore, there are state benefits which unmarried couples can also rely upon on the basis that “they have been living together as husband and wife” such as welfare benefits and universal credit which unsurprisingly, provides further confusion.

The key difference between married and unmarried couples is that, in contrast to a couple who are married, when an unmarried couple split up the financially weaker and dependent party has no financial claim for themselves nor any sharing entitlement. What this means in practice, is that cohabitees cannot claim maintenance or property adjustment orders and are not entitled to anything automatically if their partner dies without making a will. Cohabitees are mistaken in assuming that by virtue of living together with their partner or, indeed, having a child together, that that alone will give them an interest in their home if they were to split up or, entitlement to automatic rights on a relationship breakdown.

To clarify:

– Unmarried couples who live together have no direct entitlement to share in anything owned by their partner. This is irrespective of the number of years they have lived together as a couple and as far as the law is concerned, they are treated as strangers in the law unless there is a statutory provision saying otherwise.

– When unmarried couples separate, the courts have no power to change ownership in the way the courts do with married couples or civil partners. The starting point is who owns the property at common law (which in practical terms is established by referring to relevant Land Registry documents and who is registered as the legal owner of the asset). For any unregistered land, this would be ascertained by the person into whose name the property was last conveyed.

– If there are children involved, child support is available under the Child Maintenance Service. In certain situations, you may apply to court instead of applying to the Child Maintenance Service for what is commonly referred to as a “top up” order. This maintenance provision is strictly limited to meet the financial needs of any children only.

WHAT IS THE POSITION REGARDING PROPERTY IF UNMARRIED COUPLES/CIVIL PARTNERS SEPARATE? WHAT CLAIMS ARE AVAILABLE WHEN COHABITING COUPLES SPLIT UP?

If a dispute arises in relation to the ownership of property, the court will want to establish who owns the property at common law (which as set out above, is ascertained by looking at relevant Land Registry documents (TR1)). However, the ownership of the legal title is only the start of the process as the legal owner may be holding the property on trust.

What this means in practical terms is that the sole legal owner may not own all the equitable interest in the property. As we are dealing with land, an express trust can only be created in writing. If there is no express trust document, then it is necessary to consider whether there is an implied trust by way of a resulting trust, a constructive trust or a proprietary estoppel.

Therefore, if co-owners have completed an express declaration of trust in writing and confirmed that they own the property on trust as joint tenants or tenants in common, then such a declaration will be conclusive (unless one can argue grounds to the contrary such as fraud). The TR1 form is completed as part of the conveyancing process before completion of the property.

The key determining factor is whether the owners entered into an express declaration of trust. If they did not and a property dispute arises on relationship breakdown, then the relevant law to pursue a claim is TOLATA (“The Trusts of Land and Appointment of Trustees Act 1996”).

What does the court take into account when dealing with a TOLATA dispute?

As set out under section 15, the court considers the following matters:

(a) the intentions of the person(s) who created the trust;
(b) the purposes for which the trust was created;
(c) the welfare of any minor who occupies the property as their home;
(d) the interests of any secured creditor of any beneficiary.

Crucially, the court is required to have regard to the factors set out in section 15 and take each into account, but these factors are not exhaustive and are to be considered in no particular order. Each case will turn on its own facts.

If a cohabitee decides to pursue a claim under TOLATA then collecting all the relevant evidence will be absolutely key – for example, having clear records of any monies spent on the property, any financial contributions made towards the mortgage, any correspondence where it explicitly states that there was a common intention to share ownership of the property. TOLATA claims are expensive, complicated, and uncertain. The Civil Procedure Rules apply to TOLATA claims and therefore, there are cost implications for the losing party.

WHAT IS THE POSITION REGARDING CHILDREN IF AN UNMARRIED COUPLE SEPARATE?

The law does provide some limited financial provision for the benefit of children if an unmarried couple who have children separate. If there are children, then the Child Maintenance Service will calculate the appropriate sum to be in paid considering the non-resident party’s income and other relevant factors (for example, the number of nights the child spends with each parent respectively). Section 15 and Schedule 1 of the Children Act 1989, also states that the court can order lump sums or property transfers for the benefit of the child which would include for example: payment of school fees, funds to provide housing for the child and one-off items such as a car.

Separately, it is worth bearing in mind that whether unmarried or married, if both parents are named on the child’s birth certificate then they will both have Parental Responsibility – i.e. the rights and responsibilities that parents have for their children. This does not mean an equal sharing of the children’s time but instead, an equal say in their upbringing, schooling and other important decisions.

PRACTICAL STEPS TO CONSIDER IF YOU ARE CURRENTLY A COHABITING COUPLE:

– Consider entering into a cohabitation agreement which would provide the necessary financial security in the event of relationship breakdown and deal with pertinent matters including children, who is to settle bills and pay the mortgage, who is to remain in the home etc. If you are renting check whether the tenancy is in both of your names.

A cohabitation agreement should clearly set out the ownership of any property and it allows each couple to decide what they wish to set out within the agreement itself. For example, a cohabiting couple could agree and arrange for maintenance payments to be made notwithstanding the fact that ordinarily, there is no law that entitles a cohabitant to apply for maintenance against another party. What makes a cohabitation agreement so appealing, is that you can set out what you want to happen in the event of relationship breakdown and, therefore, avoid expensive litigation. Also bear in mind that SDLT will be payable if you are transferring property or a beneficial interest in any property as part of any negotiation.

– Ensure you both have a valid will in place so that if one of you were to die the other is appropriately provided for.

– Ensure relevant nominations are in place whether that be in relation to pension provision and/or life cover.

– Take some time to reflect on your particular set of circumstances and what you would wish to protect in the event of relationship breakdown. Knowing now all of the above information, are you happy and comfortable continuing to cohabit or do you wish to protect yourself by entering into a cohabitation agreement or agreeing to proceed with a Declaration of Trust?

To conclude, there continues to be a serious lack of awareness when it comes to cohabitation and the rights of unmarried couples on a relationship breakdown. What is abundantly plain is that unmarried couples who live together continue to be misinformed about their rights. Some continue to naively rely on the concept of “common law marriage” on the basis that they have lived with their partner for a substantial amount of time believing that this provides them with certain rights.

Whilst many of our neighbouring countries have now recognised the need to provide protection to unmarried couples, the UK regrettably is still lagging behind the views of contemporary society. Fundamentally, why should cohabiting couples have to resort to getting married to secure the same legal rights as those who are married?

In terms of practical advice, if you want to ensure that you have the necessary financial security in place (akin to married couples) then it may be worth seriously considering getting married or entering into a civil partnership in order to secure that protection or alternatively, enter into a cohabitation agreement. Cohabitation agreements are becoming increasingly prevalent and are a sensible step to take if you wish to make arrangements for your property, children and other important matters in the event of a relationship breakdown.