If your relationship breaks down and you were not married or in a civil partnership, the legal issues that you may face can be quite complicated.
Contrary to popular belief, there is no such thing as a “common law marriage”. Couples who cohabit do not have the same rights as married couples when their relationship breaks down. The protection available to cohabiting couples is limited and obtaining legal advice is crucial in order to understand your legal position when your relationship comes to an end.
When a cohabiting relationship comes to an end, neither party has any financial responsibility towards the other. It is likely that each party will retain the assets that they have in their sole name. If there is a dispute regarding a jointly owned property or a property owned in one party’s name with a contribution from the other, this can be resolved by court proceedings under the Trust of Land and Appointment of Trustees Act 1996.
Couples who are thinking of living together can, to some extent, reduce uncertainty by entering into a cohabitation or living together agreement to regulate their financial affairs whilst they live together. They can also make a Declaration of Trust to deal with the ownership of property and in what shares it is to be held.
Contact Colette Family Law on 0191 5806044. We will discuss your concerns and give you some initial legal advice. We can also discuss your likely legal costs to help you decide how to move forward.
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Your legal rights as a partner will depend on whether you are married or living together. Living together with someone is sometimes also called cohabitation.
Generally speaking, you will have fewer rights if you are living together than if you are married.
Although there is no legal definition of living together, it generally means to live together as a couple without being married.
You can formalise aspects of your status with a partner by drawing up a legal agreement called a cohabitation agreement or living together agreement. A living together agreement outlines the rights and obligations of each partner towards each other. In practice Living Together Agreements are still quite uncommon. If you are buying a property together you might want to make specific and legally enforceable agreements as to the legal ownership of the property that you are buying. If you want to do this, you will need legal advice.
What is parental responsibility?
Parents with parental responsibility are entitled to have a say in important decisions about a child’s life such as the child’s home, health, education, religion, name, money and property. Parental responsibility lasts until a child reaches 18 or marries between the ages of 16 and 18.
Who has parental responsibility?
You will have parental responsibility if you’re:
the child’s birth mother, or
the husband of the child’s birth mother, or
the female married partner of the child’s birth mother and you are treated as the child’s legal parent, or
an adoptive parent.
Who can get parental responsibility?
If you do not have parental responsibility, you might be able to get it.
If you’re an unmarried father or an unmarried female partner of the child’s mother, you do not automatically have parental responsibility. However, you can get parental responsibility for your child by:
registering (or re-registering) the birth of your child together with the child’s mother
making a parental responsibility agreement with the mother and registering it at court or
obtaining a parental responsibility order, or
becoming the child’s guardian (which would only take effect on the mother’s death),
or marrying the mother.
Both parents are responsible for financially supporting their children. The father is equally responsible even if he is not living with the mother or named on the child’s birth certificate. He can be contacted by the Child Maintenance Service for maintenance if he is not living with the mother. Similarly, if the child lives with the father, the mother can be contacted. Both same-sex parents are responsible for financially supporting their children if they are the children’s legal parents and can be contacted by the Child Maintenance Service for maintenance. The Child Maintenance Service will not get involved if you can agree the financial arrangements for your children.
If one partner dies without leaving a will, the surviving partner will not automatically inherit anything unless the couple owned property jointly. As an unmarried couple, you need to make wills if you wish to make sure that your partner inherits on your death.
You can go to court for an order to protect yourself and your children if your partner is violent. The court can order the violent partner to leave the home for a certain period of time and, if the court order is not obeyed, the violent partner can be arrested.
Ending a relationship
An unmarried couple can decide to separate without the intervention of a court. The court does have power to make orders relating to the care of the children if you cannot reach agreement.
A married couple can decide to separate but if you want to end the marriage legally, you will need to go to court and get divorced.
Financial support (maintenance)
Neither partner has a legal duty to support the other financially.
Each married partner has a legal duty to support the other however the question of whether they should, depends on the particular circumstances of the case
If your partner won’t support you and you’re still living together, you can ask a court to order them to support you. Your ex-partner may have to continue to support you after your marriage has ended if you have made a legal agreement or if there is a court order.
You and your partner can make an agreement that neither of you will support the other or you can agree a clean break
A property may be owned in the sole name of one partner or may be owned jointly.
If you are the sole owner, you have a right to stay in the home. However, your partner may be able to claim a ‘beneficial interest’ in it – see below.
If you are joint owners, you and your partner have equal rights to stay in the home.
If your partner is the sole owner, you may have no rights to remain in the home if your relationship comes to an end.
If you don’t have children and your partner is the sole owner, the only way you may be able to claim an interest in the property is if you are able to show you have a ‘beneficial interest’ in it. This is a way of getting a court to formally recognise contributions you have made towards the home. The court could also recognise an understanding you had with your ex-partner when you bought the home that you would have a share in it if it were sold. If you are able to prove you have a beneficial interest in the home, you may be able, for example, to get the right to live in the home, prevent your ex-partner from living there or get a share of the proceeds if the home is sold.
You may be able to ask a court to make a decision about who has the right to stay in the home on a short-term basis. This is called an occupation order. You can also apply for an occupation order to allow you to return to the home if you’ve left. You can apply for an occupation order if you’re the sole owner, joint owner, have a beneficial interest or are the partner of a sole owner. However, if you’re not the owner or joint owner, you can only apply for certain types of occupation order. An occupation order usually lasts for only a limited period of time.
If you want to claim beneficial interest in your home or apply for an occupation order, you will need to get legal advice about this.
Both married partners can continue to live in the matrimonial home, regardless of who bought it or has a mortgage on it. This is known as matrimonial home rights. You will have the right to stay in the home until a court has ordered otherwise, for example, as part of a separation or divorce settlement.
If you and your partner are divorcing, the long-term right to ownership of your property can be decided within divorce proceedings. The court has the power to transfer property regardless of original ownership.
If you are the sole or joint owner of the home, your partner will not be able to sell it without your agreement.
However, if your partner is the sole owner, you will need to register your matrimonial home rights in order to protect your interests. Unless you register your home rights, you will not be able to prevent your partner from selling the home or be able to remain there if it is sold.
You can register your home rights, regardless of whether or not you are still living in the home as long as you are married.
As an unmarried partner you are entitled to be known by whatever name you wish and can change that name at any time. Two people living together can decide to use the same family name, although legally they do not have to.
If you’re a woman, when you marry you are not legally required to take your husband’s family name. The family name you use depends upon your culture, politics, choice and religion.
Many women are now choosing to continue using their existing family name. Others use one name in their job and another in their personal life. There is nothing in law which prevents you from doing this and you can still sign documents in your previous name.
If you get divorced or are widowed, you can continue to use your husband’s family name, or you can go back to using your previous name, although you may be asked to show your birth certificate and decree absolute of divorce if you want to do this.
Anyone can change their name at any time, and so as a man you can change your family name, on marriage, to that of your wife.