Cohabitation relates to unmarried couples who are living together as partners, while unmarried or without a civil partnership.
Last week the government launched a consultation on reforms to provide cohabiting couples greater financial protections at the end of a relationship and automatic inheritance rights should their partner die without a will. The proposed changes would attempt to modernise family law and better reflect contemporary relationships and the decline in marriage. Under new legislation, couples will be considered cohabitants if they have lived together for a minimum of three years or share a child.
Currently cohabiting couples have fewer legal rights than married couples, such that the legal implications of their relationship breaking down are very different than if married.
If married or in a civil partnership, existing statute allows the court to exercise its discretion to achieve a ‘fair’ outcome for the parties. Applying the law relating to cohabitees however, the court’s powers are limited to who owns the property and in what proportions, depending on their contributions towards buying the property, or perhaps servicing the mortgage. The court may consider the parties’ conduct to determine whether they intended their finances to be shared or remain separate.
How to Protect Interest in a Property
When a cohabiting couple intend to buy a property together and, perhaps, one wishes to protect their greater contribution towards the deposit, it is advisable to draft a Deed of Trust, which is a legally binding document to detail the proportions in which the property is held and how the balance of equity should be distributed when the property is sold.
Can I Make a Claim for the Children?
If arrangements for the parent not living with the children cannot be agreed, the parent with whom the children are living can make an application to the Child Maintenance Service, who will assess the monthly sum to be paid and arrange to collect that sum from source, if payment is not forthcoming voluntarily.
Schedule 1 Children Act 1989
Additionally, Schedule 1 of the Children Act allows an unmarried parent to apply for financial provision for their child from the other parent. If the absent parent owns property, or earns a high salary, it is worth exploring the possibility of an application to include the following provisions:
- Periodical payments for yourself on the child’s behalf or to the child themselves – to top up CMS payments, pay school fees, or if a child has additional needs. The payer must earn a minimum gross salary of £156,000.
- Lump sum for yourself on the child’s behalf or to the child themselves. Usually for a one-off payment e.g. For a car, or to furnish a home for the child.
- Settlement of property for the benefit of the child – An order for a parent to purchase or transfer a property to the parent with care of the child, often during the child’s minority and to revert to the paying parent when the child becomes an adult.
- Transfer of property to you on the child’s behalf or to the child themselves.
How Does the Court Decide What Order to Make?
The court’s primary consideration is the welfare of the child and all the circumstances to include the following:
- The income, earning capacity, property and other financial resources a parent has or is likely to have in the future.
- The financial needs, obligations and responsibilities a parent has or is likely to have in the foreseeable future.
- The financial needs of the child.
- The income, earning capacity (if any), property and other financial resources of the child.
- Any physical or mental disability of the child.
- How the child was being or was expected to be educated or trained.
How We Can Help
Donna Goodsell states that although current statute for cohabiting couples is complex, it is worth taking early legal advice can help you understand how the court approaches these decisions.
At Goodsells Family Law we provide clear, practical and compassionate advice to parents and cohabitees to achieve a fair division of assets and financial provision.
Contact us to discuss your situation and obtain tailored advice. Call us on 020 7622 2221 or email us at enquiries@goodsellssolicitors.co.uk.