It is a popular misconception that living together gives you the same legal rights against your partner on separation that you would have had you been married. It is not uncommon for cohabitants to be surprised by the lack of legal provision there is for cohabitants in English law, even if they have lived together for many years and have children together.
Over the last 20 years, cohabiting couple families have been the fastest growing family type, with the numbers of cohabiting couples doubling over this period. It has become more popular for couples to live together for a long period of time without marrying, and to have children in cohabiting relationships. But what happens when a cohabiting relationship breaks down?
Please see below Q&A for the most frequently asked questions on separation:
We own the property together. Am I entitled to anything?
The starting to point is to consider the legal ownership of the property. Is the property owned as joint tenants or tenants in common? If the property is owned in joint names, then the property will usually be divided equally between the parties. The easiest way to effect this is for one party to buy out the other party’s interest in the property. If that is not possible, the property will have to be sold and the proceeds of sale divided equally.
In the event the property is owned as tenants in common, the property will usually be divided in accordance with the share of ownership as detailed on the title register or in the Declaration of Trust.
My partner owns the house, but they have promised me a share of the property.
Where a property is held in the sole name of one party, it is more difficult to establish that you have a beneficial interest in the property. The Court can infer that a constructive trust exists, but this will wholly depend on whether there is evidence of the promise being made. This is a complex and fact specific area of law. You should consult a solicitor to discuss your prospects of being able to prove that a promise was made.
I own the house, but my partner paid a share of the deposit.
The starting point is that the property is legally yours, as it is owned in your sole name. However, your partner may be able to bring a claim under the Trust of Land and Appointment of Trustees Act 1996. A resulting trust can be found to exist as a result of direct contribution to the purchase price of the property.
My Partner Won’t Leave my House What Can I Do (UK)
This very much depends on how the property is owned or rented. If it is in joint names, it would be difficult to exclude your partner from the property. However, if there are instances where your partner has been aggressive towards you, and your wellbeing is at risk, you may be able to apply to the Court for injunctive relief, preventing your partner from remaining at the property. If you are in immediate danger, you should call the police as a matter of urgency.
What happens to our contents?
Contents are usually retained by whoever purchased the item. Unfortunately, disagreements over household contents can be very time consuming. You may find it more productive to take a pragmatic view and accept that whilst you could spend months arguing over literally the kitchen sink, second hand goods rarely retain their value and you may be better conceding the smaller items, for your own peace of mind.
Who do the children live with?
You first need to establish whether the father has Parental Responsibility for the children. Parental Responsibility is all the legal rights, duties and obligations a parent has to a child. This includes a right to make decisions about a child’s upbringing, for example, what school the children should go to or what religion the child should be brought up in. Married fathers automatically assume Parental Responsibility. Unmarried fathers will only have Parental Responsibility automatically if they are named on the child’s birth certificate.
It is up to you, as parents, to agree with whom the children should live and when they should spend time with the other parent. During the course of a relationship breakdown, this can prove difficult – See here.
If you are unable to agree with whom the children will live, you may find it helpful to attend mediation with your partner to discuss this issue. In the event an agreement cannot be reached in mediation, you would need to make an application to the Court in respect of the child arrangements. The Children Act applies to all families, whether cohabiting or married.
I need to buy a car to take the children to school. Do I have any right to ask for this?
Yes, most unmarried parents are unlikely to be aware of applications pursuant to Schedule 1 of the Children Act 1989. The reported instances of Schedule 1 Claims usually relate to extremely wealthy parents where there is a surplus of funds. However, this is a remedy available to all unmarried parents with modest assets. It is possible to ask that your partner contribute to capital expenses for the children, such as a car, a fund for school fees or even a property big enough to house the family. The usual position is that assets such as a house will revert to the payer when the child is 18 years old.
The division of assets on the breakdown of a cohabiting relationship is a complex area of law. It is therefore advisable to take legal advice on your rights early on in separation.
For more information on the issues raised in this blog and to learn more about what relationship breakdown advice is available, please do not hesitate to contact one of the team at Rayden Solicitors.