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Breaking Up Is Hard To Do

Reasons to choose Wilson Browne

The dream may be over

The thrill of moving-in together, perhaps buying a house, furnishing it, building a life together, even having children outside of the traditional marriage – sometimes things just don’t work out and when a split happens, despite best intentions things can get messy, difficult, or awkward.

Ten things you need to know if cohabiting or thinking of cohabiting

1. Common Law Marriage

This one is easy: contrary to popular belief, there is no such thing as a common law marriage despite the widely held belief that it exists.

2. What rights do cohabiting couples have after a break up?

In terms of finances, the situation is more complex than for married couples, and
a cohabiting couple will generally have the same rights as married couples when it comes to arrangements for children of the relationship, as the courts will focus on what is best for the child.

Worth noting is that an unmarried father may not have parental responsibility if he is not named on the birth certificate. In this situation, it wouldn’t prevent the unmarried father from making an application to the court for contact, but it would mean a separate application would have to be filed.

3. How do the rights of a cohabiting couple differ from those of a married couple?

When a married couple separates, both can apply to the court for financial provision under the Matrimonial Causes Act 1973. The court will take into account all of the financial circumstances including (but not limited to) property, pensions, investments and business interests.

The court also has the power to make orders for property to be sold or transferred, spousal maintenance to be paid and pensions to be split (amongst other things). Essentially, the court will look at all the circumstances of each case and then decide on a fair outcome.

The normal starting point is a 50/50 split of the assets but it retains a wide discretion to deviate from that to decide what a fair outcome should be. The court will always try to ensure both parties’ basic needs are met and where there are children of a marriage, the court’s first priority will be to ensure the needs of the children are met.

With cohabiting couples, none of this applies. The important distinction is that there is no automatic right for cohabiting couples to apply for financial provision on separation: consequently, there is no starting point for the court to achieve a fair outcome. This can mean that one person’s needs will not be met but, owing to the strict limitations on the type of applications that can be made, there may be little they can do.

4. Are there any laws to assist cohabiting couples?

Property disputes are the most common reason for cohabiting couples to end up in court regarding separation. These disputes are determined on property law principles – not rights that arise because the couple were in a relationship. In these cases, the courts will look at what the parties agreed regarding the ownership of the property as well as the financial contributions of the parties.

Such cases are often complex and the associated legal fees can be high. The starting point is that the beneficial ownership of a property reflects the legal estate* and to show otherwise is not a task to embark upon lightly. An example of a situation frequently encountered is where one party pays significantly more towards the property at the outset and incorrectly assumes they are automatically entitled to a greater share.

[ *see explanation HERE ]

5. Litigate or Mediate?

When such matters do proceed to court, there is the added risk that the “loser” will pay the “winner’s” costs of the litigation, something that does not generally apply in matrimonial proceedings.

In such situations, couples can and should consider mediation to see if a compromise can be reached to avoid the stress, and risk (financial or otherwise) of court proceedings.

6. What about financial support for children?

In regards to financial support for children, the Child Maintenance Services retains jurisdiction whether or not a couple were cohabiting or married. Either party can apply to the CMS for a calculation as to the appropriate level of maintenance. The CMS will make the calculation based on the non-resident parent’s earnings as well as how many nights per year the child stays with them. If the non-resident parent then fails to make the payments, the CMS can take the payments directly from their wages.

It is worth noting that the courts are still more limited in regards to financial support for cohabiting couples. Married couples can issue an application for financial provision and there are a variety of orders the court can make. In cases where the couple were married and there is a large disparity of earnings, the court can order a period of spousal maintenance if deemed fair and reasonable in the circumstances.

We frequently see the courts award this where one party is either not working, or working limited hours around the children being at school or nursery, and the other is earning a significant salary. The amount awarded can be over and above the figure calculated by the CMS. It is also worth noting that where CMS payments will stop when the child is at the age of 16 (or 20 if the child is still in full time education), the court can award spousal maintenance for a longer period.

Whilst it is possible for cohabiting couples to apply for maintenance over and above the CMS calculation, there are very limited circumstances where this is possible and would generally involve one of the parties being an exceptionally high earner.

7. Does the length of time a couple have lived together make a difference?

Having a long relationship doesn’t give couples any greater or lesser rights in itself. However, it may influence the way a couple has organised their finances and property ownership.

8. What happens on the death of a cohabiting partner?

A person is not automatically entitled to inherit a house or anything else simply because they are in a relationship.

If you own part of a house and your co-owner dies, you will continue to own your share. Whether or not you inherit the other person’s share depends on how the property is owned and the terms of any Will. If the property is owned in as joint tenants then the deceased’s share may be inherited automatically. If the property is otherwise owned, either as tenants in common or in only one name, then that deceased’s Will or the rules of intestacy (where there is no Will) apply and it may not pass to the surviving partner.

9. Can cohabiting couples put anything in place to safeguard rights to property following a break-up?

Yes.

There are a number of options that couples should consider:
• On purchasing a property together, couples should explore whether it would be better for them to own a property as joint tenants or tenants in common.
• Where one person is paying all, or a larger portion, of the deposit, the couple should consider registering a declaration of trust against the property. This would record the agreement as to beneficial interest.
• In all cases where couples cohabit, a cohabitation agreement should be considered. The cohabitation agreement can set out who pays what and who owns what. Taking these steps can save a lot of time, stress and money in the event of a breakup.

10. How to help avoid costly legal disputes later

In short, they say “love is blind”, but our advice is not to turn a blind eye to taking a few practical steps that could save a lot of stress and upset later.

Good legal advice need not be expensive and money spent getting everything “sorted” at an early stage could be a fraction of what it costs later, if things don’t work out.

Joe O’Brien

Posted:

Joe O’Brien

Solicitor

Joe is a solicitor who specialises in divorce, children, financial remedy, TOLATA, cohabitee disputes and pre-nuptial agreements and has previously provided commentary to the BBC.