You have been living together for years, but you are not formally married but you see yourselves as common law spouses- the law will protect you in the event you decide to go your separate ways- won’t it? Think again….
Imagine the scenario, you have been together since your early twenties, moved in together and set up home. You have three children together, who are now aged 19, 16 and 13. You had always talked about getting married, but one thing or another got in the way, and you decided to spend the money on doing up the house rather than having a big fancy ceremony. Who needs a piece of paper to show that you love each other anyway?
Recently, things have been getting difficult between you, he is staying late at work, and you feel increasingly frustrated stuck at home particularly now the children are getting older. You have tried couples therapy but it hasn’t worked and you have agreed to separate.
You feel you know each other well, and that you will be able to sort out things amicably and reach an agreement in relation to the house, maintenance for you and support for the children. You have tried to sit down with your partner, but he doesn’t see why he should give you anything, it is all in his name, and to quote him “he paid for it all”. You ask him about your contribution to the family, the fact you gave up your work when the children were little and you haven’t been able to go back, and being realistic, you are still going to need to care for them until the youngest leaves home (if not longer).
Your friends tell you that you will be fine, you are, after all, a ‘common law spouse’. However, on investigating this, you discover that this in fact means nothing. As you are not married, the law gives no protection on the breakdown of your relationship.
The Current legal position
Of the 19 million families in the UK in 2017, 3.3 million are cohabiting couples and this figure is on the rapid increase. Despite clear recommendations from the Law Commission to improve the rights of cohabiting couples (not necessarily in line with divorcing couples) nothing has yet been done. Separating cohabitees do not have the same legal protection as couples who are divorcing (or dissolving their civil partnership). Your potential claims (if any) are based on complex property and trust law.
If you have children, there are ways, depending on your circumstances, of obtaining financial support for them, to include the provision of a home for their minority.
Practical steps to protect you
Get informed and find out what your rights are. If you are thinking of moving in together, make sure you understand the terms of how the house is going to be held, and get a declaration of trust to set this out. If you are the one bringing the property to the relationship, you may want to protect it against future claims.
You can also enter into a well-informed living together (cohabitation) agreement. This can be relatively simple and straightforward. It can deal with payment of living expenses, improvements to the property, perhaps a buyout clause and how you will manage day to day decisions such as general expenses from food to redecorating. It can also deal with what should happen if you separate. It is also sensible to record any investments made by the ‘bank of Mum and Dad’ and what should happen to it in the event of the breakdown of the relationship.
It really does pay to think about the worst case scenario and plan. Make sure you both have valid Wills in place and you need life insurance to offer protection if the unexpected happens.
The Future
It is hoped that later this year, the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill, which formally extends Civil Partnerships to opposite sex couples, will be made into statute. This will offer an alternative to opposite sex couples who do not want to get married but want the same legal protection. It will be interesting to see what the take up of civil partnerships will be (given they have fallen dramatically for same sex couples since the opening up of civil marriage).
Unless and until there is more substantial reform in this area of the law- be aware and think again.
If you would like to understand your rights in relation to your finances and property before or after moving in with a partner please contact us on 020 7409 1222.