Many couples who find that their marriage has come to an end will be aware that it is possible for them to apply to a court for a financial order in respect of any property or assets that belong to their spouse. A divorced person is entitled, if applicable to their circumstances, to maintenance payments, to a share of their former spouses pension, or to receipt of a lump sum or property, even if they do not own that property in joint names with their former spouse or they did not contribute in person to the pension or other capital assets.
Especially in the case of a longer marriage, a court will be less concerned with who paid for what and when, and more concerned with ensuring that both parties leave the marriage in a similar position financially and that one party to the marriage does not keep any accumulated wealth for themselves leaving their former spouse without any assets of their own or the means of supporting themselves in the future.
But what is the position with couples who separate after living together, often for a considerable time and sometimes with children born to the relationship?
It is quite usual for people to think that there is such a thing as a ‘common law’ husband or wife, and that by merely living together with someone else for a nominal period of time, they have acquired the same rights over their partner’s property and assets as a married person.
In fact this is not the case at all.
There is no such legal entity in UK law as ‘common law marriage’. Co-habiting couples who separate are not entitled to maintenance payments for themselves from their better off former partner (except for children). They are not entitled to a share of their former partner’s pension. They may find that they are no longer entitled to occupy a property that has been their home for many years.
In relation to property, if the property is owned in joint names, there is a presumption that it is owned in equal shares and a house, for example, can usually be sold and any proceeds from equity divided equally, although this presumption can be rebutted. The capital in a joint bank account is usually assumed to belong to both parties in equal shares.
If property is owned by only one person, it can be difficult for the non-owning partner to claim a share in that property, even if they have lived there for a long time. The law in this area can be quite complex and involves the field of ‘constructive trusts’ and analysis of the parties’ intentions in respect of the property when it was purchased or the relationship started. Often when parties contribute to the development of the property or the mortgage payments then that could well give rise to a beneficial interest in the property meaning that that contributing party could be entitled to a share of the property.
A Co-habitation Agreement and a Will should absolutely be obtained if you are thinking of living together, or already living together, and going to own property and have children. This Agreement would be signed as a Deed and would regulate the arrangements, financial and property matters between the cohabitees whilst living together.
Here at Laker Legal Solicitors we specialise in Family Law. We offer a fixed fee service for Co-habitation Agreements from £575 + VAT so please contact us today with your specific requirements and see how we can help.
