Cohabitation and Family Law
When you live with your partner and are not married, you do not have the same legal rights as married couples if your relationship breaks down. This means that as a cohabitee, depending on your individual circumstances, you may have few rights when it comes to arrangements for children, financial settlements, and division of property.
By creating a cohabitation agreement with your partner, you can help to protect your interests should you later split up.
Buying property together
A home is often the most valuable asset in many couples’ financial pots. How you own the property, whether as joint tenants, tenants in common, or if one partner owns the property outright, will have a major bearing on how the property will be treated if the relationship breaks down.
If your partner owns the property outright, there is a danger that you might be forced to leave if the relationship breaks down and you will have no financial rights to a share of the property’s value unless you can prove you made a significant financial contribution, such as:
- Paying or contributing to the deposit
- Paying the mortgage or part of the mortgage
- Paying for development work, such as an extension, on the understanding that you would receive a share of the home
If you have moved into a property owned by your partner and you both agree that you should have a share in it, it may be possible to transfer the property into a joint tenancy.
If a transfer of ownership is not something you wish to consider, a cohabitation agreement can include a provision for division of property if the relationship breaks down.
Alternatively, a Declaration of Trust can be drawn up to confirm in a legally binding document the proportion of ownership of the property or properties, and to confirm how the proceeds of any property sale will be divided amongst the interested parties.
Children and parental responsibility
Parental responsibility is a legal framework defined in the Children Act 1989 to determine the rights, duties, powers, authorities and responsibilities that a parent, or another person with legal responsibility, has for a child.
Most married fathers have parental responsibility, but unless unmarried fathers were named on the birth certificate, they will not have automatic parental responsibility.
Unmarried fathers in England and Wales have three possible routes for achieving parental responsibility, these are:
- Being named on the birth certificate (i.e. joint registration of the birth) – applicable since 1 December 2003
- Seeking a parental responsibility agreement with the mother
- Applying for a parental responsibility order from the family court
If your partner has a child or children from another relationship and you are the step-parent, you will not have parental responsibility for them; however, you can seek parental responsibility via the latter two methods above.
Maintaining a relationship with your child after relationship breakdown
Sadly, even if the father of a child has parental responsibility, there is no absolute legal right for him to be able to maintain a relationship with the child following relationship breakdown unless he is the parent the child lives with. And this is the same for mothers who do not live with their child after a split.
Parents who cannot agree on where a child will live and how the relationship with the non-resident parent will be maintained can seek a child arrangements order through the court. In all child law applications, the court’s priority will be to ensure that the child’s welfare and best interests are upheld.
Unmarried parents may wish to include provision for child arrangements following relationship breakdown in a cohabitation agreement. This could be an acknowledgement of who the children will live with and how the relationship with the non-resident parent would be maintained.
All biological parents, whether they have parental responsibility or not, are legally responsible for financially supporting their child if they do not live with them. If you cannot agree how child support will be organised following relationship breakdown, you can ask the Child Maintenance Service to calculate the amount payable and to manage the payment schedule.
Other things to think about in your cohabitation agreement
A cohabitation agreement can also include provisions for many other items and how they will be treated if the relationship breaks down, these could include:
- Bank and building society accounts
- Investment accounts
- Cars and other shared vehicles
- Property; including jewellery, art and furniture
Other things to think about as an unmarried couple
Cohabiting partners should also consider making a Will and setting up Legal Powers of Attorney, as your partner, no matter how long you have lived together, will not have automatic rights of inheritance when you die or the ability to manage your affairs if you are no longer able.
We can help you with these issues and our Wills and LPA solicitors will be happy to talk you through the two processes.
Seeking legal advice for your cohabitation agreement
Whilst the contents of a cohabitation agreement should be mutually agreed upon by you and your partner, you will need to seek independent legal advice to ensure that the document is drafted correctly and that its contents are in your best interests.
If a court is going to uphold the contents of your cohabitation agreement, it will need to be certain that both parties clearly understood the terms of the document and what signing the agreement would mean if a split occurred. You should consult a family lawyer with experience in this field.
Expert family lawyers in Sevenoaks, Kent
If you would like to find out your options in relation to drafting a cohabitation agreement or issues relating to relationship breakdown we can provide an initial fixed-fee consultation for £100+VAT. In this meeting, you will be able to discuss your unique position and we will explain the options open to you.
The wider team at Wellers Reece-Jones can assist you with Will writing, Lasting Power of Attorney, and other issues relating to property ownership.