The marriage foundation’s campaign, Family Matters, regarding no-fault divorce will be implemented shortly by the government, but it seems that successive governments have failed to do anything constructive about the reform of the law with respect to unmarried couples. Many couples with children who have been together for many years, make no provisions in the event of breakdown of their relationship, incorrectly thinking that they enjoy the same rights as married couples or those in a civil partnership. That certainly is not the case.
At present there are a number of different ways whereby unmarried couples can protect themselves in the event of breakdown in their relationship. For example, a cohabitation agreement is a legal binding document designed to protect the legal rights of unmarried couples. If property is owned jointly as tenants in common, a declaration of trust will set out ownership rights including financial property and parental rights. Leaving a will, does not help, as property does not pass under the will where there is a tenancy in common. Each party will own a separate share in this scenario. If a cohabitation agreement is in place this will set out what would happen if there is a separation and gives legal protection and helps to resolve misunderstanding.
In an age where it seems to be fashionable for couples to live together rather than to get married, or even enter into a civil partnership, different legal rights apply to them as compared to married couples or civil partners. They certainly do not have the same legal protection and they have far less responsibility to each other in the event of a breakup.
This notion of common law marriage is also a fiction or a myth. There is no such thing for couples who have remained in relationships for many years.
Cohabiting couples have no financial responsibility to one another if they separate. There is no such thing as the needs of one party being balanced against the resources of another as there is in so far as married and civil partners are concerned.
Unmarried partners cannot claim spousal support if their relationship breaks down but child support may be payable through the Child Maintenance Service.
Unmarried mothers automatically have parental responsibility for their children. This discriminates against fathers who do not automatically have parental responsibility for their children unless they are married to the mother. Unmarried fathers can however obtain parental responsibility by jointly registering the birth of their child which means the father’s name must go on the child’s birth certificate along with that of others.
Alternatively, unmarried fathers will need to enter into a parental responsibility agreement. This is a statutory declaration of parentage signed by both parties. Alternatively, parental responsibility can be achieved by way of a consent court order.
A father without parental responsibility would not automatically have that responsibility for his children if the mother passed away, which can make a difficult situation more challenging.
There is also the issue of inheritance. Unmarried cohabiting couples have no automatic right of inheritance if their partner dies without a will. When somebody dies without a will there are legal rules, called intestacy rules, which decide who benefits from their estate. Unmarried partners do not benefit under intestacy rules.
When one cohabiting partner dies without a will the surviving partner may be able to claim from their estate through the inheritance (provision for family and dependents) Act 1975. Surviving unmarried partners can apply through that actual provisions from the deceased’s partner’s estate on the basis that their partner died intestate without a will, or their partner left a will but did not adequately provide for their partner within it.
Surviving partners have six months to make a claim once the grant of probate – letters administration has been issued. In some circumstances it may be possible to start a claim after six months has passed.
Insofar as property rights are concerned which is one of the most important anxieties of unmarried partners, if a cohabiting couple split up they do not have the same legal rights to property as married couples or those in a civil partnership. In general, unmarried couples cannot claim ownership of each other’s property in the event of a breakup. Gifts made during the relationship remain the property of the recipient. If the matter proceeds without settlements to litigation, it will have to be proved that one party made a gift of property to the other. It is expensive to litigate on these issues.
So, if one partner owns a house the other partner may have a claim to have an interest in it on the basis that a trust has arisen even if the relationship later breaks down. A trust may arise where a partner makes certain major financial contributions, for example by paying to build an extension to the property. It does not include helping to pay for the mortgage, or the bills of the property, or helping to paint the property. The contributions have to be major to give an interest in property. It can include however a life policy whereby the partner who owns the property includes the other partner in the policy, so that in the event of death of the partner owning the property, the mortgage is paid off. By including the non-owning partner in that life policy, and without a cohabitation agreement, it can be argued that there is an intention that this non-owning partner has an equal share in the property. There is an implied agreement and a trust of this nature is enforceable.
If cohabiting partners purchase property on the basis of a joint tenancy, as joint tenants each person owns the whole of the property so each has one hundred percent stake in the property value. This means that the parties will need to obtain a joint mortgage to cover the value of the whole property. If one party dies, their interest in the property automatically passes to the other owner. One cannot leave part of the property to someone else in a will in the joint tenancy scenario. The right of survivorship takes precedence over the will. Married couples that own property together would typically be joint tenants. If there is a problem in the relationship and one of the parties does not wish the other to take the property on death, then that party will have to sever the joint tenancy and serve a notice of severance and then negotiate shares to be taken if possible.
Insofar as tenants in common are concerned, each party can own a separate share of the property, for example 60% – 40%. They will be registered as tenants in common on the land registry, but they should have an agreement setting out the share one party is entitled to in the event of the death of the other, or in the event a split. Otherwise an unmarried owner, can leave their share of the property to whoever they choose in a will, and in the absence of a declaration of trust as to ownership or any other separation agreement between the parties, the partner who has otherwise no legal rights, will be thrown into the realms of making the application under the inheritance (provision for family and dependents) Act 1975.
Against the above background it can be seen why it is important for the rights of unmarried couples to be brought in line with the rights of married or couples or those in a civil partnership. It is hoped that the Marriage Foundation as a respected and authoritative pressure group, will make an input into this neglected area of law, upon which the Law Commission had previously advised, but successive governments had ignored.
Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.